Posted Content•
The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review
TL;DR: The Roberts Court under Chief Justice John Roberts has become less likely to strike down federal laws, but more likely to invalidate state laws as mentioned in this paper, and the Roberts Court can thus far be called the least activist Supreme Court in history.
Abstract: Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberals justices to the Court who could press the constitutional views that are now most often expressed in dissent.
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01 Jan 2016
TL;DR: In this article, the origin of the Alien Tort Statute, its aim and the previous case law were discussed, underlining why it was the only statute at the disposal for human rights suits against corporations.
Abstract: Having understood the background situation in Nigeria, the next step is grasping the Alien Tort Statute, as it was the legal instrument used to bring Shell before the U.S. Judiciary. Understanding the origin of the Statute, its aim and the previous case law will underline why it was the only statute at the disposal for human rights suits against corporations. Considering the US approach of using case law as precedent, the two major Alien Tort Statute cases will be discussed in detail to ensure a profound understanding of the judicial foundations. In a further step, and keeping in mind the corporate nature of Kiobel, significant Alien Tort Statute cases concerning oil corporations will be assessed. Finally, a case study on Kiobel will be undertaken.
8 citations
TL;DR: In a recent study, this paper found that almost half of the constitutional court judges worldwide are selected by a mixed selection system, whereby a specific number of judges are chosen by different government institutions.
Abstract: Almost half the constitutional court judges worldwide are selected by a mixed selection system, whereby a specific number of judges are selected by different government institutions. What are the i...
6 citations
Cites background from "The Least Activist Supreme Court in..."
...First, judges understand what type of constitutional adjudicator the selecting institution wants and the basic needs and mission of the selecting branch (see, Nunes, 2010; Whittington, 2014), which vary by institution....
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01 Jan 2021
TL;DR: The U.S. Supreme Court and its exercise of power, examining milestone decisions beginning with Marbury v. Madison (1803), is discussed in this article. But the analysis is limited to the three major constitutional eras as laid out in Robert McCloskey's The American Supreme Court.
Abstract: The U.S. Constitution, the oldest written constitution, gives each branch of the federal government certain distinct powers, each apportioned through a separated system with built-in checks and balances calculated to guard against abuses perpetrated by any one branch. The nation is therefore said to have three separate governmental branches sharing power. This chapter introduces the Supreme Court and its exercise of power, examining milestone decisions beginning with Marbury v. Madison (1803). It then explains the framework used for exploring the Court’s policy-making across the three major constitutional eras as laid out in Robert McCloskey’s The American Supreme Court.
2 citations
Posted Content•
TL;DR: Obergefell v. Hodges as mentioned in this paper is the seminal case in the history of substantive due-process issues in the United States, where the majority argued that the case resolved the rights of same-sex couples to marry and did not diminish the opponents' voices.
Abstract: Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court's most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents' voices. The dissenters were right -- at least in part.Obergefell necessarily demeaned traditional and religious opponents of same-sex marriage, but nevertheless, the Court reached the correct outcome. Judicial neutrality is impossible, so the Court's decision inevitably would have privileged one voice or view over another. Although the dissenters further asserted that the majority impaired democracy, the opposite was true. Laws that discriminate against peripheral groups, such as gays and lesbians, undermine the democratic process. In a well-functioning democracy, certain issues must be off the table, beyond democratic debate. Treating gays and lesbians as full and equal citizens in good standing is one such issue, whether in regard to marriage or otherwise. The majority's decision in Obergefell ultimately bolstered the democratic process.
1 citations
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Journal Article•
TL;DR: For instance, this article argued that the U.S. Supreme Court does not exhibit ideological change over the course of their tenures, contrary to the commonly held belief that the Justices themselves do not exhibit ideology change over time.
Abstract: I. INTRODUCTION When the U.S. Supreme Court invalidated the use of military commissions for enemy combatants in Hamdan v. Rumsfeld? the decision fueled more than a national debate over the powers of the President. It also generated commentary about the ideological composition of the Court. Conservatives proclaimed that they were just one Justice, just one vacancy, away from victory in Hamdan2 and a handful of other recent decisions that worked against their interests.3 Liberals worried about it just as much.4 The commentary over Hamdan reflects a widely shared belief among journalists, politicians, scholars, and even judges: alterations in the Court's jurisprudence are unlikely in the absence of membership change. That is because of an underlying belief that the Justices themselves do not exhibit ideological change over the course of their tenures.5 To paraphrase the old proverb: once a conservative, always a conservative. Likewise for liberals.6 Why the assumption of stable preferences is so deeply held is open to speculation. Some analysts suggest it would defy logic to expect mature persons, with years of experience in the legal world, to revisit their jurisprudential views. Would a John G. Roberts Jr.-a Justice who has studied, litigated, or adjudicated court cases for over half his life-alter his ideological preferences? The answer, according to Professor David A. Strauss, is that he would not: As Americans try to figure out what Judge John G. Roberts Jr. will be like as a U.S. Supreme Court [JJustice, one idea seems to [be] that whatever Judge Roberts is now, once he is on the [CJourt he might develop into something different. In particular, the thinking goes, even if he is the intense conservative suggested by his Reagan-era memoranda, he may become more moderate as a [J]ustice. Don't believe it.7 Shoring up intuitions about the implausibility of preference change is empirical support in the form of a William H. Rehnquist on the right and a Thurgood Marshall on the left-Justices who never seemed to veer from their preferred ideological courses. When President Richard Nixon appointed Rehnquist to the Court, virtually all observers of the day deemed the nominee a reliable conservative.8 Likewise, at the time of his appointment, the press declared Justice Marshall a probable addition to the Court's "liberal bloc."9 That these initial ideological labels well characterized the Justices' future behavior only serves to confirm Professor Strauss's claim about the unlikelihood of change. Or so the argument goes. And yet, despite the commonplace nature of the claim, it is not without its share of skeptics. Whether pointing to anecdotes or more systematic evidence, several analysts now contend that ideological drift is not just possible but likely.10 Exhibit A, they say, is Justice Harry A. Blackmun. While the Justice himself maintained that it was the Court, not he, that moved-"I don't believe I'm any more liberal, as such, now than I was before," Justice Blackmun once told a reporter"-many scholars disagree.12 To them, it is hard to believe that the same Justice who dissented from the Court's 1972 decision to strike down existing death penalty statutes13 wrote, in 1994, "[f]rom this day forward, I no longer shall tinker with the machinery of death."14 But is Justice Blackmun the rule or the rare exception? Do most Justices remain committed to a particular doctrinal course throughout their careers, as Strauss and others contend, or do the skeptics have the better case? After reviewing the relevant commentary in Part II, we deploy state-of-theart methods to address these questions. The results, as it turns out, could not be clearer: contrary to the received wisdom, virtually every Justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times. Finding that ideological drift is pervasive, in Part IV we develop the implications of our results for two moments in the Justices' career cycle: the events surrounding their appointments to the Court and the doctrine they develop once confirmed. …
145 citations
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TL;DR: The thesis is that the right to life is a right possessed by persons and by certain potential persons, that its ground is and must be found in the nature of man, in man's autonomy.
Abstract: Although the issues with which this paper is concerned are of the greatest importance, the paper itself is a modest one which represents an attempt to bring together strands in contemporary Western thought about respect for human life. I am concerned with the basis of the right to life, whether all human beings possess it, and why, what the right involves and enjoins, what constitutes lack of respect for it, what are its limits, how, in what ways and to what degrees it is a prima facie or conditional right. The theme of the paper is an examination of the right to life with reference to the rationale of contemporary humanist thought on the matter. My thesis is that the right to life is a right possessed by persons and by certain potential persons, that its ground is and must be found in the nature of man, in man's autonomy, that it is not merely a negative right as Locke and so many since him have seen it as being, a right not to be killed, but a right to receive aids and facilities to protect and preserve one's life against dangers, humanly and naturally created, and that, being a right of recipience, it is a prima facie or conditional right, a right, the claims of which must on occasion be subordinate to the claims of other rights and values. What I am concerned to oppose is the view that all human beings possess the right to life, an absolute, inviolable, inalienable right to life at that.
89 citations
Posted Content•
TL;DR: In this paper, the authors proposed a change to the life tenure rule for Supreme Court Justices, which would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the court.
Abstract: In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history. This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. In this Article, we call for a change to the life tenure rule for Supreme Court Justices. To resolve the problems of life tenure, we propose that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.
47 citations
TL;DR: In this paper, the authors place the issue of judicial tenure in historical perspective, with special attention to the institutional development of the Court, the changing politics of the appointments process and the types of individuals who emerge from it, and to a lesser extent, broader socio-demographic trends in technology and medicine.
Abstract: Against the backdrop of a decade-long wait for the next Supreme Court vacancy, legal academics from across the political spectrum have proposed or supported significant constitutional or statutory reforms designed to limit the terms of Supreme Court justices and increase the pace of turnover at the Court. Fearing a Court that is increasingly out of touch with the national mood and staffed by justices of advanced age, advocates of term and age limits contend that the trend in Supreme Court tenures is inexorably upward. But are Supreme Court justices really serving longer now than in the past? If so, why? And what might such trends mean for American constitutional democracy? In a debate otherwise dominated by law professors - and largely without careful empirical analysis - we place the issue of judicial tenure in historical perspective, with special attention to the institutional development of the Court, the changing politics of the appointments process and the types of individuals who emerge from it, and to a lesser extent, broader socio-demographic trends in technology and medicine. In the process, we show how proponents of reforms designed to end life tenure have ignored a significant factor influencing patterns in judicial service: the decline of the "short term" justice. Trends in judicial tenure, we argue, cannot be explained solely by more justices serving unusually long terms; rather, they are driven at least in part by the fact that fewer justices are serving relatively short terms. In this paper, we consider why justices have retired after only short-service throughout much of history, why they rarely do so today, the conditions under which future justices might be compelled to serve shorter terms, and the democratic gains and losses associated with short-term service on the Court. In sum, by following the rise and fall of the short-term justice over the course of American political development, we offer a new perspective, grounded in political science, on an issue currently occupying the attention of lawyers, journalists, and policymakers alike.
14 citations
01 Jan 2016
TL;DR: In this article, the origin of the Alien Tort Statute, its aim and the previous case law were discussed, underlining why it was the only statute at the disposal for human rights suits against corporations.
Abstract: Having understood the background situation in Nigeria, the next step is grasping the Alien Tort Statute, as it was the legal instrument used to bring Shell before the U.S. Judiciary. Understanding the origin of the Statute, its aim and the previous case law will underline why it was the only statute at the disposal for human rights suits against corporations. Considering the US approach of using case law as precedent, the two major Alien Tort Statute cases will be discussed in detail to ensure a profound understanding of the judicial foundations. In a further step, and keeping in mind the corporate nature of Kiobel, significant Alien Tort Statute cases concerning oil corporations will be assessed. Finally, a case study on Kiobel will be undertaken.
8 citations