Thomas M. Keck
Associate Professor of Political Science
Maxwell School of Citizenship and Public Affairs
Syracuse University
Professor Keck's 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 his major published works, as well as several works in progress. A full list of publications is available in his curriculum vitae.
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).
Articles and Book Chapters
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.
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.
Note: The above link is to an electronic version of an article published in Law
& Social Inquiry: complete citation information for the final version of the
paper, as published in the print edition of Law & Social Inquiry, is available
on the Blackwell Synergy online delivery service, accessible via the journal's
website at
http://www.blackwellpublishing.com/lsi or
http://www.blackwell-synergy.com.
“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.
Advances a novel interpretation of Justice Souter’s distinctive constitutional
jurisprudence, noting that scholars have generally understated his commitment to
liberal constitutionalism.
“Activism and Restraint on the Rehnquist Court: Timing, Sequence, and Conjuncture in Constitutional Development.” Polity 35:1 (Fall 2002): 121-52.
Explains a tension on the Rehnquist
Court that has been widely noted but not well understood. Though constitutional
conservatives have long advocated judicial restraint, the Rehnquist Court has
exercised its own power quite actively, going so far as to enter the “political
thicket” of the 2000 presidential election. The complex pattern of conservative
influence on the modern Court cannot be explained by reference to either legal
or partisan factors in isolation, but only by the interaction of such factors
over time. While many scholars have noted that the Court is both a legal and a
political institution and that we need to understand it as such, I seek to
sharpen our understanding of this dynamic by drawing on several key concepts
from the literature on political development. In particular, historical
institutionalist scholars have recently highlighted the importance of
“conjunctures of separately determined processes” in shaping patterns of
political order and change – a useful rubric for understanding the interaction
between the post-New Deal entrenchment of rights-based constitutionalism and the
post-1968 conservative realignment in American politics. In short, modern
conservatives have sought both to abandon liberal constitutional rights and to
create new conservative rights. Given the entrenchment of rights-based
constitutionalism – and the path-dependent nature of constitutional development
– they have been more successful at the latter.
Work in Progress
Rights and the Right: Judicial Politics in the Culture Wars.
Book project examining
the relative influence and independence of judicial institutions during the
Clinton and Bush eras. Focuses on three “culture war” conflicts (affirmative
action, gay rights, and abortion) in contending that the leading scholarly and
popular descriptions of courts have simultaneously overstated their
anti-democratic tendencies and understated their influence on policy and
political outcomes.
"Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights."
According to a number
of leading scholarly accounts, proponents of political change are unwise to rely
on litigation because such strategies are ineffective at best and
counterproductive at worst. Much of the scholarly literature on modern gay
rights litigation has painted a more positive picture, but largely without
explicitly addressing the claims of the more pessimistic account. Here, I
evaluate one such claim—that controversial judicial decisions generally provoke
a counterproductive political backlash—and I find it misleading on three counts,
regarding 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.
"Why Roe Still Stands: Abortion Law, the Supreme Court, and the Republican Regime" (Co-authored with Kevin McMahon).
From
alternate angles, the modern Supreme Court’s abortion jurisprudence appears
either to confirm or contradict the “regime politics” account of the Court.
From one vantage, the Court has repeatedly rejected the central demand of
a key GOP constituency, refusing time and again to overturn
Roe v. Wade. From another angle, the
Republican coalition has succeeded in transforming the constitutional law of
abortion rights to a significant degree. Though
Roe
remains on the books, prohibiting local, state, and federal legislative bodies
from banning abortion altogether, those elected institutions are far freer today
than twenty years ago to make abortions more difficult to obtain. In this light,
we argue that advocates of the regime politics approach have sometimes failed
adequately to distinguish between the Court’s actual decisions and the plausible
alternative paths that the Court might instead have followed. The Court’s recent
decision in Gonzales v. Carhart is certainly consistent with the
preferences of the Republican regime, but the bolder challenge to existing law
advanced by Scalia and Thomas in that case would also have been consistent with
those preferences. In short, the justices generally act consistently with regime
preferences, but they still generally have multiple options from which to
choose, and we must often look beyond the regime’s ideological preferences to
explain why they chose one rather than the other. Tracing the shifting strategic
calculations of Republican elites from 1980-2007, we argue that electoral
considerations have repeatedly led those elites to back away from a forceful
assertion of their agenda for constitutional change. Given the barriers to such
a concerted effort—barriers which will almost always be present in the
contemporary political system—the justices will often remain free to act
on their own policy preferences, strategic calculations, and jurisprudential
commitments.
"Bush’s Greatest Legacy? The
Part of a collection of essays on The George W. Bush Presidency, edited by Mark J. Rozell, Gleaves Whitney, and Gary L. Gregg II, this chapter will assess the degree to which the decisions of the Roberts Court are (so far) explicable by reference to the partisan commitments of the national Republican Party.