Is the Party Over? The Court and the Political Process

Abstract

This article identifies and analyzes five features of political parties that make them among the most complex and dynamic of any political institution and therefore among the most difficult for the judiciary to assess. Political parties are dynamic, complex, and endogenous; thus, their structure is determined in large part by the rules governing them. Judicial decisions that establish the structure of parties are problematic because courts constitutionalize the policy choices they make, even though those choices are not necessarily compelled by the Constitution. Such constitutionalization is unjustified because the dynamic characteristics of political parties that make them such a challenge to regulate also afford substantial political protection to both major and minor parties against encroachments on their autonomy. The article therefore argues that the general presumption in favor of judicial review should be jettisoned in the context of laws regulating political parties, and the opposite presumption adopted with nearly conclusive force. The article provides three objective "red flags" for courts to use to distinguish the very few cases in which judicial intervention is warranted from the vast majority of cases in which courts should decline to become involved.

Keywords: political parties