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In the Balance: Law and Politics on the Roberts Court
30 Sep 2013-
TL;DR: In the Balance as mentioned in this paper, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court, covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court.
Abstract: When John Roberts was appointed chief justice of the Supreme Court, he said he would act as an umpire. Instead, his Court is reshaping legal precedent through decisions unmistakably-though not always predictably-determined by politics as much as by law, on a Court almost perfectly politically divided. Harvard Law School professor and constitutional law expert Mark Tushnet clarifies the lines of conflict and what is at stake on the Supreme Court as it hangs "in the balance" between its conservatives and its liberals. Clear and deeply knowledgeable on both points of law and the Court's key players, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court. Covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court, In the Balance is a must-read for anyone looking for fresh insight into the Court's impact on the everyday lives of Americans.
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TL;DR: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones.
Abstract: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. Much of this progress fits the conventional model of federalism as a left–right ideological issue on the Court, which divides liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest greater openness to federalism among some on the left.
8 citations
TL;DR: For example, this paper found that when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court's center.
Abstract: An empirical examination of decisions by the Roberts Court can illuminate the contemporary Supreme Court’s impact on criminal justice. The Court’s decisions and the voting patterns of its justices confirm the Roberts Court’s generally conservative reputation with respect to criminal justice. However, contrary to commentators’ assertions about a five-member conservative majority actively reshaping criminal justice law in a rights-restricting fashion, the deeply-divided Court actually produces a notable number of rights-protective liberal decisions. Indeed, when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court’s center. Justices Antonin Scalia and Clarence Thomas have also made important contributions to liberal decisions in divided cases. Generalizations about the Roberts Court’s conservatism and judicial activism in criminal justice are overstated without recognition of the voting patterns that have contributed to the production of rights-maintaining and rights-expanding liberal decisions.
3 citations
TL;DR: The recent Supreme Court ruling regarding same-sex marriage presents a number of problems for a nominally secular and pluralistic society that aspires to be democratic as discussed by the authors, including the prominence given to veiled (and not-so-veiled) religious language.
Abstract: The recent Supreme Court ruling regarding same-sex marriage presents a number of problems for a nominally secular and pluralistic society that aspires to be democratic. As to the nation’s nominally secular commitments, this decision is striking for the prominence given to veiled (and not-so-veiled) religious language. As to the nation’s pluralism, the decision presupposes a rather narrowly Christian (and indeed Roman Catholic) view of marriage. As to the nation’s democratic commitments, the decision participates in the emerging trend whereby Court decisions are read simply for their results, not for their reasoning. This creates the perception that Supreme Court decisions create winners and losers in an arbitrary and undemocratic fashion. To counter this trend, this article provides a close reading of the decision, and the four dissents, to pursue broader questions about the place of this debate in current North American society.
2 citations
TL;DR: In this paper, a review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead, and explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally.
Abstract: Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. In The Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.
TL;DR: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones.
Abstract: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. The extent of these gains is greater than many observers recognize. Much of this progress fits the conventional model of federalism as a left-right ideological issue on the Court, dividing liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest a greater degree of openness to federalism among the liberal justices, and perhaps others on the left.