The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

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In striking contrast to the legislatures in most modern democracies, Congress retains an important place in American politics and policy making. Especially in recent years, this has led many observers to question the importance of the presidency and bureaucracy to the real work of American governance and the extent to which political actors in the executive branch generally exercise power. This narrative of congressional dominance has been particularly bolstered by recent scholarly interest in principal-agent models of interbranch relations. The assumption of congressional centrality, however, obscures many important features of American politics. Over the course of American history, institutional development in particular has often been driven by either autonomous executive action or conflicts between Congress and the executive. We develop an approach for assessing executive power in institutional politics and illustrate the logic of executive influence with three cases: the rise of federal food-and-drug and forestry regulation, and the growth of the federal farm extension service in the early twentieth century; the rise of the national security state in the mid-twentieth century; and the evolution of budgeting and spending practices over the course of the twentieth century.

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The field of "public law" in political science is somewhat ill defined. Its practitioners range from political theorists interested in the normative underpinnings of the law to statisticians interested in the correlates of judicial voting. The output of the Supreme Court, however, looms large on the landscape for many approaches to the field. In the first decades of the century, political scientists were unlikely to focus specifically on the explanations for the Court's decisions but were more likely to be interested in a broad range of issues related to the courts and the law. Since the "behavioral revolution" that swept the social sciences in the 1950s, however, judicial decision making has been at the core of the field. Over the past several decades, substantial progress has been made in identifying patterns of judicial voting behavior and the determinants of Court decisions. That progress, though real, has also been narrow. The scholarly focus has been on individual justices and how they cast their votes, leaving a great deal of the judicial process relatively unexplored.