Parties to the Suit: Partisan Litigation and the Development of American Politics

Abstract

Although scholars have investigated how partisan politics interacts with federal courts, they have paid less, if any, attention to the phenomenon of partisan litigation – when one political party (such as Republicans) files or participates in a lawsuit aimed at a policy or action associated with their opposing party (such as Democrats). This dissertation remedies that gap by defining the phenomenon and by examining the conditions under which it occurs. Partisans, for the purposes of this dissertation, are elected federal officials or members of the national Democratic or Republican party apparatus. And partisans can litigate in several ways by: (1) filing the lawsuit; (2) working with partisan proxies who file the lawsuits; or (3) filing amicus briefs or otherwise affecting a lawsuit from behind the scenes. Building upon the fields of American political development and judicial politics, the dissertation theorizes that partisan litigation occurs when multiple political orders layer upon one another. Specifically, partisan litigation cannot occur without partisan polarization and judicial politicization creating conditions to make federal courts attractive theaters for partisans to signal policy positions or win policy victories when the legislative branches no longer serve those purposes. Other political orders also affect the likelihood of partisan litigation, such as the growth of executive power and closely divided elections. As shown by an original dataset, partisan litigation has occurred since the founding, but it has become much more common in the modern era. Ultimately, the dissertation explains why, and it analyzes what it means for the American political system that litigation, rather than deliberation, has become one of partisans’ go-to political moves. Adopting and synthesizing the frameworks of past scholars of law and politics, the dissertation takes a novel perspective for analyzing the evolution of American politics. It uses information gleaned from the unique dataset to examine how the incentives of partisan litigants differ from that of other litigants, and how their presence in the courtroom can affect the development of American politics. Partisan litigation is, largely, both a symptom of constitutional dysfunction and a phenomenon that can worsen what ails the American political system.