Thomas M. Keck
Michael O. Sawyer Chair of Constitutional Law and Politics
Department of Political Science
Maxwell School of Citizenship and Public Affairs
Syracuse University
My research focuses on the Supreme Court, American constitutional development, and the use of legal strategies by movements for social change, on both the left and the right. This page provides a summary of my major published works. A full list of publications is available in my curriculum vitae, and many of these papers are available for download at my SSRN Author Page.
Books
When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while also creating its own brand of conservative judicial activism. Ranging from 1937 to 2004, The Most Activist Supreme Court in History traces the legal and political forces that have shaped the modern Court. Thomas Keck argues that the tensions within modern conservatism have produced a Court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights—even a presidential election. Keck focuses in particular on the role of Justices O’Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court. No other book has delved as deeply into the jurisprudential and ideological priorities of the Rehnquist Court.
Writing in The New Republic, Jeffrey Rosen has called the book "provocative" (and endorsed its central thesis), while Choice says that "[i]f you read just one book on the history of the modern Supreme Court, this should probably be the one." Howard Gillman calls it "superb. A thoughtful, comprehensive, and balanced account of the rise of modern conservative activism in the United States Supreme Court." In the Annual Review of Political Science, Mark Graber notes that “[f]ive important books by young political scientists have recently been published on the political construction of judicial review. . . . All make important contributions to constitutional theory and development. All should be required reading for graduate students doing dissertations on constitutional courts and academic lawyers writing on the role of federal judiciaries. . . . Collectively, these studies announce a new paradigm” (427).
Selected Articles and Chapters
This article evaluates the widespread scholarly claim that the courtroom victories of the LGBT rights movement have invariably provoked a counterproductive political backlash. Those victories have indeed provoked conservative counter-mobilization, but that has not been their only or even their most prominent effect. Assessing the political reaction to the movement’s judicial victories, the policy impact of those victories, and the alternative strategic paths that were available to the movement at the outset, I argue that here, as elsewhere, legal mobilization has sometimes been a promising avenue for pursuing policy changes whose prospects were otherwise quite limited.
“Bush’s Greatest Legacy? The Federal Courts and the Republican Regime.” In Testing the Limits: George W. Bush and the Imperial Presidency, ed. by Mark J. Rozell and Gleaves Whitney (Rowman & Littlefield, 2009): 219-242.
Part of a collection of essays on George W. Bush's presidency, this chapter examines President Bush's impact on the federal courts. Aggressively employing his powers to nominate federal judges and to direct the litigation efforts of the Department of Justice, Bush sought to construct a reliable institutional ally that would facilitate his policy and political goals in the short term and would remain in place long after he had left the White House himself. Having successfully appointed more than sixty federal appellate judges, including two members of the Supreme Court, Bush clearly made a lasting mark. But given the scope of Republican ambitions in this context—a true remaking of the third branch—I argue that his efforts ultimately fell short.
Recipient of the 2008 Houghton Mifflin Award, recognizing the best journal
article on law and courts published by a political scientist in 2007, this article explores three competing accounts of judicial review by comparing
the enacting and invalidating coalitions for each of the fifty-three federal
statutes struck down by the Supreme Court during its 1981 through 2005 terms.
When a Republican judicial coalition invalidates a Democratic statute, the
Court’s decision is consistent with a partisan account, and when a conservative
judicial coalition invalidates a liberal statute, the decision is explicable on
policy grounds. But when an ideologically mixed coalition invalidates a
bipartisan statute, the decision may have reflected an institutional divide
between judges and legislators rather than a partisan or policy conflict.
Finding more cases consistent with this last explanation than either of the
others, I suggest that the existing literature has paid insufficient attention
to the possibility of institutionally motivated judicial behavior, and more
importantly, that any comprehensive account of the Court’s decisions will have
to attend to the interaction of multiple competing influences on the justices.
For an updated version of the data in this article,
click here.
Focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey
Rosen, this article traces the development of a longstanding tradition of
Supreme Court scholarship within political science (the “regime politics”
literature) and its recent migration to the legal academy. These recent books
provide illuminating accounts of the Court’s relationship to the broader
political system, and they collectively represent a significant improvement over
conventional legalistic accounts of the Court’s decision-making. Nevertheless,
in borrowing so heavily from the regime politics tradition, these legal scholars
have exacerbated two problems which have been present in that literature from
the beginning.
“The Neoconservative Assault on the Courts: How Worried Should We Be?” In Confronting the New Conservatism: The Rise of the Right in America, ed. by Michael Thompson (New York University Press, 2007): 164-193.
Building on my earlier work examining
the tension between the widespread conservative demand for judicial restraint
and the ever-increasing willingness of conservatives to deploy judicial power
themselves, this chapter assesses the implications of that tension for
contemporary left-liberal politics. Focuses on two of the most significant
constitutional conflicts of the George W. Bush era: one that was purportedly
responsible for his 2004 reelection and another that is likely to be his most
transformative legacy: same-sex marriage and executive power during wartime,
respectively.
“From Bakke to Grutter: The Rise of
Rights-Based Conservatism.” In
The Supreme Court and American Political
Development: The Interplay of the Internal and External in Supreme Court
Decision-making, ed. by Ronald Kahn and Ken I. Kersch (University Press of
Kansas, 2006): 414-42.
As part of a volume examining the interplay of internal and external influences
on the Supreme Court, this chapter examines the failed legal and political
assault on a landmark Supreme Court precedent, Regents of the University of
California v. Bakke (1978). Explores the ways in which the political interests
that pressure the Court are often constituted by legal categories created by the
justices themselves. This sort of “feedback” effect is common to political
development more generally, but has not received much attention in the judicial
politics literature.
“David H. Souter: Liberal
Constitutionalism and the Brennan Seat.” In
Rehnquist Justice: Understanding the
Court Dynamic, ed. by Earl Maltz (University Press of Kansas, 2003): 185-215.
Part of a collection of essays on the justices of the Rehnquist Court, this
chapter advances a novel interpretation of Justice Souter’s distinctive constitutional
jurisprudence, noting that scholars have generally understated his commitment to
liberal constitutionalism. Souter's role in maintaining the Court's protection
of abortion rights is well known, but I argue that his legacy will also include
the continued separation of church and state--a line he persistently sought to
maintain--and the willingness of judicial liberals to challenge the readings of
constitutional history advanced by their conservative colleagues.
Recent Unpublished Papers
When we think of litigation on controversial culture-war issues, we most often think of cases that pit (or at least appear to pit) judicial politics and democratic politics against each other. In a number of contexts, however, rights advocates (on both the left and the right) have used litigation in an effort to enable and facilitate campaigns for policy change that they were conducting primarily via electoral and legislative channels. Drawing on an analysis of legal disputes regarding abortion, affirmative action, gay rights, and gun rights during the Clinton, Bush, and Obama eras, this paper details six such circumstances. Before seeking legislative change at the state or local level, advocates have sometimes found it necessary to call on federal courts to remove state constitutional barriers that precluded such change. When seeking policy change via ballot initiatives or referenda, advocates have sometimes appealed to courts to remove impediments to the electoral success of those measures. While pursuing change via legislative channels, advocates have sometimes litigated in an effort to draw public attention to the need for legislation and, in the meantime, to win some piecemeal protections. Litigation has sometimes been initiated by democratically elected policy makers themselves when other policy avenues are closed off. Advocates have sometimes appealed to federal courts to thwart activist decisions won by their opponents in state court. And finally, advocates have often litigated to enforce policy victories previously won via electoral and legislative channels. Greater scholarly attention to these six types of suits would complicate existing accounts of the relationship between rights-based litigation and democratic governance.