usurpation of legislative prerogatives, this is more of a tribute to the decision’s evident moral
depravity than an accurate reflection of the political context. In fact, the Court’s decision
both 1)reflected the policy preferences of a majority of the dominant Jacksonian coalition,
and 2)served the strategic value of diffusing responsibility for an intractable political problem
that threatened to split the governing coalition if it had been legislatively resolved. Similar
dynamics can be observed in the cases of Progressive-era antitrust legislation and the
Supreme Court’s intervention into the abortion issue in Roe v. Wade. Lovell’s study of labor
legislation in this United States provides further empirical ammunition for this empirical
insight. While scholars had generally assumed that the American judiciary had inhibited the
strength of the American labor movement through the use conservative activism against
legislatures that were sympathetic to the interests of labor,
19
Lovell points out that this
picture of the courts is highly problematic. Congress, in fact, passed intentionally vague
legislation with the full knowledge that the contemporaneous federal courts were
overwhelmingly likely to resolve ambiguities against the interests of organized labor. The
strategic benefits are evident: it allowed members of Congress to have it both ways to
appease its labor constituencies while assuring businesses that the policy impact of reform
legislation would be minimal; to resolve legislative logjams; and to diffuse responsibility for
potentially unpopular policy outcomes. As a final example, Silverstein (1997) has observed a
similar pattern of legislative deference to the courts in the realm of foreign policy.
The empirical discovery of legislative deferrals is of significant interest to scholars of
comparative law for two reasons. First of all, it recapitulates the fact that judicial power can
derive from collaboration with other institutions, rather than from judicial independence.
Secondly, it forces us to reconsider received notions about the role of courts in liberal
19
See, for example, Forbath (1991), Hattam (1993).
Convention