Understanding Regime Change: Public Opinion, Legitimacy, and Legal Consciousness

By their willingness to revise existing constitutional definitions, courts help political institutions pursue popular policies. The idea of court-assisted regime change resonated within political science because it appeared consistent with contemporary policy controversies. In cases such as desegregation and interracial marriage, the Supreme Court of the United States appeared to be creating openings for state and local, as well as federal, agencies to incorporate popular demands for change. The requirement necessary for constitutional courts to accomplish regime change was clear: a population sufficiently aware of the role of a constitutional court to permit such a court to review and legitimate changes in rules required for new policies. This article argues that contemporary research on legal consciousness offers a means to explain the role of courts in facilitating and legitimating regime changes that keep government policy consonant, to variable degrees, with transformations in material conditions and popular sentiment. It discusses the mechanism of change and the mechanism of legitimation and presents a classic account of the role of the Supreme Court in American politics.