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Journal Article

Reasoning about the Irrational: The Roberts Court and the Future of Constitutional Law

01 May 2011-Washington Law Review (Washington Law Review Association)-Vol. 86, Iss: 2, pp 217

TL;DR: For example, the authors pointed out that the Roberts Court's treatment of the role of judicial doctrine, and the concept of rationality, in constitutional law has changed significantly since the death of Justice Scalia.

AbstractCommentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. … more

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Sonu Bedi1
02 Sep 2013
TL;DR: In this article, the authors present a power review of race, gender, and sexual orientation in the context of identity versus powers, and discuss how constitutional law rationalizes racism and why racial profiling is based on animus.
Abstract: Part I. Identity versus Powers: 1. Suspect class and the dilemma of identity 2. A powers review Part II. Race: 3. How constitutional law rationalizes racism 4. Why racial profiling is based on animus Part III. Sex and Sexuality: 5. The puzzle of intermediate scrutiny 6. Same-sex marriage and the disestablishment of marriage.

7 citations

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03 Jan 2016-Yuridika
TL;DR: In this article, the main problem is the ratio legis HKPK in the constitution in Indonesia is discussed in the framework of the realization of gender justice it is seen in various minutes of the amendment formulation meeting.
Abstract: Sic et Non . Yes and no. Freedom and restriction of the essence of HKPK. Both are located face-to-face. Every country has a unique character in implementing and synthesizing. This matter will be discussed in this article. The main problem is the ratio legis HKPK in the constitution. In Indonesia, the ratio legis is constitutional rights. Ratio Legis HKPK in Indonesia is in the framework of the realization of gender justice it is seen in various minutes of the amendment formulation meeting. As part of human rights, HKPK emerges under a forum agreement to be an integral part of human rights. However, the textual HKPK does not limit the HKPK on gender differences. The decision of the Constitutional Court to legitimize the application of HKPK in cases of gender differences. In India and Pakistan is fundamental rights. In Germany leads to individualistis. In United States showed unwritten constitution. Finally in South Africa show the priority in the equality. Secondly, The freedom and restriction are both, sythese as morallity and realize by rule.