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Journal Article

Judicial Modesty Political Reality and Preferred Position

01 Jan 1961-Cornell Law Review-Vol. 47, Iss: 2, pp 175-204
TL;DR: The Court's democratic responsibility has been examined in the context of the New Deal experience as discussed by the authors, and the main complaint arising out of that experience was the alleged lack of democratic restraints on the Court.
Abstract: calculations of the Court's democratic responsibility cannot get us very far Much of the current thinking about the Court has its base in the New Deal experience, and the principal complaint arising out of that experience was the alleged lack of democratic restraints on the Court The consequences of the New Deal fight tend of course to prove just the reverse, but we need not stop there The average post-Civil War Justice has sat only thirteen and a half years 8 Since a President has the opportunity of appointing a new Justice on the average of every twentytwo months, it seems unlikely that the Court could hold out very long against entrenched majority sentiment 9 President Roosevelt's problem was thus exceptional and the sudden and radical shift in the Court's position in 1937 simply represents a variation in the more gradual change to be statistically anticipated 0 With a bow to Mr Dooley it should be said here that, even aside from the high turnover of the Justices, the Court does follow the election returns at least in terms of broad responses to popular desires71 Paradoxically enough, the nonelective and formally nonpolitical character of the Court accentuates its sensitivity to public opinion We have noted that other institutions of the central government tend to rest upon relatively independent and cohesive clienteles The Court does not have the opportunity to control continuously the kind of active bounty-creating programs which serve to develop grass roots support Thus, without a unified body of special supporters, the Court lacks an anchor against the shifting winds of national political sentiment Several commentators have pointed out that the Court's duty to square its decisions with reason and authority is the key to its accountability and responsibility to the public72 In other words, the Justices' work might well be viewed as a continuous attempt to convince the public that the Court's decisions are constitutionally legitimate It may be naive to believe that the Court can be wholly limited by a self-interpreted Constitution73 However, it is certainly equally naive to believe that the Justices are totally unrestrained by provisions to which they must continuously and publicly pay homage Also, when the Court decides a specific case, its opinion is a specific document, and that document records the position of nine specific men74 08 Black, The People and the Court 180 (1960) 69 Dahl, "Decision-Making in a Democracy: The Supreme Court as a National PolicyMaker," 6 J Pub Law 279, 284-86 (1957) 70 Id at 285 71 Swisher, The Supreme Court in Modem Role 179-80 (1958) 72 Mason, The Supreme Court from Taft to Warren 212 (1958); Curtis, Law as Large as Life 99-100 (1959) 73 Roche, Judicial Self-Restraint, 49 Am Pol Sci Rev 761, 763-64 (1955) 74 If the complexities of Dixon-Yates are recalled or an attempt made to locate the HeinOnline -47 Cornell L Q 191 1961-1962 CORNELL LAW QUARTERLY The greatest restraint on the Court is of course the judicial process itself It has become a truism that case-by-case determination limits the Court to occasional and fiegative intervention in the governmental process and excludes many vital areas entirely75 Even when the Court does exercise review, it does so largely on the sufferance of Congress The amending process is always available and a determined Congress has rarely found that it cannot, by deft and persistent redrafting, eventually accomplish its end Professor Peltason has concluded after an examination of the place of courts in the political process that "judicial interpretation of the Constitution is not necessarily any more final than interpretation of a statute" 76 If the problems of the Court's power and responsibility are not so simple as they are sometimes made to appear, neither are its relations to Congress Since Judge Gibson's day77 the opponents of review have argued that Congress can make determinations of constitutionality as well as the Court, but Judge Gibson's argument is an early specimen of the formalistic approach which seems to plague examinations of review The decision-making process in Congress is so complex and fractionalized that even if the members of Congress sincerely desired to make a final and "official" determination of constitutionality, they would find it difficult to do so Congressional statutes, as we have noted, are the product of a series of marginal adjustments and compromises among various semi-independent groups It is nearly impossible to interject black and white questions like constitutionality into the early stages of such a process Moreover, when the bargaining has been so nearly completed that a bill reaches the final debate and voting stage, so many commitments have been made that the interjection of a constitutional issue would not only be futile but in many instances appear to be a traitorous repudiation of pre-established agreements It is, therefore, highly probable that considerations of constitutionality could only take their place among the multitude of other considerations which acquire various weights at various stages of the negotiations depending on how important they appear to any given legislative power holder This not only means that constitutional questions would be given relatively little exact who, where, or when of any given decision on weapons systems or foreign policy, or for that matter rivers and harbors improvements, the point should be clear Who is held to a higher standard of democratic responsibility, the Supreme Court or the Chief of the Fish and Wild Life Service preparing a program proposal which will pass through and be altered by the Bureau of the Budget, two legislative committees, two appropriations committees, a conference committee, and the President before the new fish hatchery gets built 75 See Rostow, supra note 47, at 197-98 76 Peltason, Federal Courts In The Political Process (1955) 77 See Eakin v Raub, 12 Serg & Rawl 330 (Pa 1825) [Vol 47 HeinOnline -47 Cornell L Q 192 1961-1962

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Book
19 Dec 2013
TL;DR: Bomhoff as discussed by the authors argues that "balancing" has always meant radically different things in different settings and uses case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights.
Abstract: The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.

84 citations

Journal ArticleDOI
TL;DR: A growing literature assumes that courts must be studied from an inter-branch perspective, which holds that American politics and policy making emanate from interaction among overlapping and diversely representative forums as discussed by the authors.
Abstract: ▪ Understanding the role of law and courts in American politics and policy making is inherently complex. The dominant response to this problem has been to specialize narrowly in Supreme Court decision making. The problem is that American politics and policy making are inherently interactive and thus cannot be easily parsed into component parts. Consistent with this observation, a growing literature assumes that courts must be studied from an interbranch perspective, which holds that American politics and policy making emanate from interaction among overlapping and diversely representative forums. The result is studies that analyze how law and courts fit into broader political and policy-making processes and reveal the political significance of seemingly technical legal matters. By redescribing courts and judicial decision making in political terms, interbranch analysis not only enriches the study of judicial behavior but also promises to bring law and courts back into the mainstream of the study ...

55 citations

Journal Article
Britta Rehder1
TL;DR: Demgegenuber as mentioned in this paper discusses the different research perspectives that are being pursued on both sides of the Atlantic and suggests that European scholars ought to take crucial assumptions of the US-amerikanischen research tradition more seriously.
Abstract: Wahrend die US-amerikanische Politikwissenschaft seit uber funfzig Jahren Gerichte als politische Akteure begreift und untersucht, hat sich dieses Verstandnis in Europa erst seit Kurzem durchgesetzt. Dabei unterscheiden sich die Forschungsperspektiven erheblich. Ein bedeutender Teil der US-amerikanischen Literatur hat die rechtswissenschaftlichen Ansatze zur Erklarung juristischer Entscheidungen herausgefordert, indem er die politischen Grundlagen der Rechtsprechung und damit die Politisiertheit des Rechtssystems untersucht. Demgegenuber beschrankt sich die europabezogene Forschung meist auf die Analyse der Auswirkungen rechtlichen Handelns auf Politik. Die Effekte werden dabei haufig als Verrechtlichung beschrieben. Der vorliegende Text arbeitet die verschiedenen Forschungstraditionen heraus und pladiert dafur, zentrale Annahmen der US-amerikanischen Forschung auch in Europa starker als bisher zu berucksichtigen. This paper reflects on the literature on courts and politics in Europe and the United States. US-American Political Science has dealt for over fifty years with the role of courts and judges as political actors, whereas this perspective has only recently emerged in Europe. The debates differ not only with regard to the number of articles written, but also with regard to their content. This paper discusses the different research perspectives that are being pursued on both sides of the Atlantic. While a major part of the US-American literature investigates the politics of judicial action and the politicization of the legal system, research on European courts confines itself to analyzing the effects of judicial action, often describing them in terms of juridification. Based on a review of the existing literature, this paper suggests that European scholars ought to take crucial assumptions of the US-American research tradition more seriously.

19 citations

Journal ArticleDOI
16 Apr 2018-Laws
TL;DR: In this paper, the authors examine the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment.
Abstract: Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates.

10 citations

01 Jan 2010
TL;DR: In this paper, a review of the literature on courts and politics in Europe and the United States is presented, focusing on the different research perspectives that are being pursued on both sides of the Atlantic and concluding that European scholars ought to take crucial assumptions of the US- American research tradition more seriously.
Abstract: This paper reflects on the literature on courts and politics in Europe and the United States. US-American Political Science has dealt for several decades already with the role of courts and judges as political actors, whereas this perspective has only recently emerged in Europe. The debates differ not only with regard to the number of articles, but also with regard to their content. This paper discusses the different research perspectives that are being pursued on both sides of the Atlantic. While a major part of the US-American literature investigates the politics of judicial action and the politicization of the legal system, research on European courts confines itself to analyzing the effects of judicial action, often describing them in terms of juridification . Based on a review of the existing literature, this paper sug- gests that European scholars ought to take crucial assumptions of the US- American research tradition more seriously.

4 citations

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