The rule of law is the tip of the iceberg: Political responses to interpretive decisionmaking in United States criminal procedure, federal preemption, and international finance

Interpretive decisionmakers are entities given public power yet designed to work ostensibly outside the confines of politics. The U.S. Supreme Court, one such decisionmaker, formally has the last word when it comes to interpreting the Constitution. Yet if the Court makes an unpopular decision---such as expanding the rights of criminal suspects and defendants---politicians can still use their control over funding, substantive law, and other resources to minimize the impact of the decision even as they comply with the letter of the rule of law. The possibility of political responses to constitutional criminal procedure highlights a recurring problem in domestic and international law and politics. While most talk about the rule of law focuses on whether an interpretive decision is followed, an equally pertinent question is whether the decision produces a countervailing political response.; This dissertation develops and tests a theory of political responses to interpretive decisionmaking. Chapter 1 explains the problem and reviews the literature, finding that a number of schools of thought implicitly assume that political responses either do not exist or do not matter. Chapter 2 develops a formal theory of political responses to interpretive decisionmaking, using a two-dimensional spatial model to define outcomes as a function of an interpretive and a policy dimension. Chapter 3 applies the theory to constitutional criminal procedure doctrine in the U.S. Late 19th century criminal procedure restricted federal power to obtain documents and testimony, creating problems for business regulatory enforcement. When economic regulation became politically popular the court retreated from its restrictive doctrine, avoiding the risk of a political confrontation. Eventually this doctrine stopped impeding regulation and became a tool for judges to oversee police enforcement of traditional street, drug, and property crimes. This shift engendered a considerable political response amid rising crime rates, in the form of funding and substantive criminal law changes working against the new procedural rights. Chapter 4 demonstrates that the theory is widely applicable by showing its relevance to federal preemption of state environmental law (contributing to lower landfill disposal capacity) and to the law and politics of International Monetary Fund decisions (contributing to slower structural adjustment and heightened corruption). Chapter 5 considers normative implications of domestic and international political responses to interpretive decisionmaking, focusing on the responses' tendency to help solve interpreters' recurring problem of democratic legitimacy while diminishing their ability to protect unpopular minorities or force difficult short-term decisions with larger long-term payoffs. Because the players generally cannot coordinate their moves, the outcomes tend to be more extreme than either player would like. Despite these limitations, interpreters can make public discourse more pluralistic, and contribute to the development of effective political and economic institutions. Yet interpreters must be politically strategic as well as normative in order to play these roles. If this makes interpreters a bit less unique, perhaps they will also feel a bit less alone.