Three-Quarters Empty or One-Quarter Full? Martha Derthick on the Courts, Federalism, and Public Policy

Joshua Dunn

Publius: The Journal of Federalism, 2017, vol. 47, issue 2, 201-220

Abstract: During the last two decades of her career, Martha Derthick wrote extensively on the role of courts; but this work has received little attention compared to her earlier scholarship. This article analyzes her primary concerns about the judiciary. For her, courts, both federal and state, often abetted centralization, made government less representative, engaged in their own forms of judicial demagogy, and made policymaking more theoretical, less practical, and therefore less effective. This article addresses each of these concerns as they emerged in Derthick’s work on federalism, tobacco politics, and education. Even though she was pessimistic about the effects of adversarial legalism on the U.S. constitutional system, there were signs in her scholarship that the system might be less fragile than she feared. I conclude by discussing areas where courts retreated to, what to her, was a more defensible position.

Date: 2017
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