Political Regimes and the Future of the First Amendment

Abstract

Fifty years ago the political scientist Robert Dahl concluded that courts are usually in sync with ‘‘the policy views dominant among the lawmaking majorities’’ and thus offer little help to aggrieved minorities (Dahl, 1957, p. 285). In recent years, Dahl’s classic formulation has received renewed attention. This chapter uses the example of the Rehnquist Court’s First Amendment decisions to analyze ‘‘regime politics’’ theory. On religion cases the Rehnquist Court was generally in sync with the socially conservative strain in the Republican Party, but in other First Amendment areas the pattern is far more complex, raising questions about the relationship between conservative judges and the political movements that brought them to office.

Keywords: First Amendment, regime politics, religion