Mark Graber’s classic article “The Non-majoritarian Difficulty” noted that on issues like slavery, antitrust and abortion ended up in the courts not because the courts "seized" power but because legislatures wanted no part of these issues, which cross-cut existing political coalitions and hence threatened to destabilize incumbent parties. Congress both failed to use tools at their disposal to retaliate against judicial policy-making, and passed various measures that expanded the authority of the courts.Sounds like an interesting book! I wonder how that argument would go over with those who think that judges are too activist and should always look to the "original intent" of whatever law they're interpreting to figure out what it means. Sometimes, apparently, Congress' original intent is to let the courts do the policymaking. Presumably legal scholars who are big on "original intent" have already thought of this; I'm just curious what they'd say.
Other scholars have confirmed Graber’s insights. Perhaps the best example is labor law, as George Lovell argues in Legislative Deferrals. One of the great puzzles of political science is why labor became so ineffectual in the United States, although labor in the U.S., was once more radical and more powerful than in Europe. Some scholars argued that the key was the presence of judicial review: Congress would pass pro-labor legislation, which would be gutted by the courts. Lovell, studying the Erdman and Clayton Acts, find however that Congress made each piece of legislation progressively more ambiguous, and gave more injunction power to the courts (which they knew full well were conservative and unlikely to resolve ambiguities in way that was favorable to the interests of labor) at each iteration.
So the story of the courts "usurping" legislative power and screwing labor is highly misleading. The policy-making the courts engaged in was how a majority of Congress wanted it. Although we think of institutions as maximizing power, it is not uncommon for legislatures to delegate and defer power to the courts, just as they do to executive agencies. (Remember, legislators don’t always want to maximize policy goals; they also want to get re-elected, finesse conflicts among constituencies, etc.)