Supreme court

About: Supreme court is a research topic. Over the lifetime, 41858 publications have been published within this topic receiving 306787 citations. The topic is also known as: court of last resort & highest court of appeal.

Justice Contained: Law and Politics in the European Union

Abstract: In this probing analysis of the European Union's transnational legal system, Lisa Conant explores the interaction between law and politics. In particular, she challenges the widely held view that the European Court of Justice (ECJ) has, through bold judicial activism, brought about profound policy and institutional changes within the EU's member states. She argues convincingly that this court, like its domestic counterparts, depends on the support of powerful organized interests to gain compliance with its rulings. What, Conant asks, are the policy implications of the ECJ's decisions? How are its rulings applied in practice? Drawing on the rich scholarship on the U.S. Supreme Court, Conant depicts the limits that the ECJ and other tribunals have to face. To illuminate these constraints, she traces the impact of ECJ decisions in four instances concerning market competition and national discrimination. She also proposes ways of anticipating which of this court's legal interpretations are likely to inspire major reforms.Justice Contained closes with a comparative analysis of judicial power, identifying the ECJ as an institution with greater similarities to domestic courts than to international organizations. The book advances a deeper understanding both of the court's contributions to European integration and of the political economy of litigation and reform.

The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government

Abstract: What role do courts play in the establishment and maintenance of constitutional democracies? To address this question, we elaborate a model that draws on existing substantive literature and on theories that assume strategic behavior on the part of judges, executives, and legislatures. This model, in turn, leads to several behavioral predictions about the interactions among the relevant political actors. Although those predictions could be assessed in many distinct contexts, we focus on Russia. In particular, we provide a demonstration of how the model helps make sense of the behavior of the Constitutional Court (Konstitucjonnyj sud) in light of the difficult political situation it confronted. We conclude with some thoughts on the broader implications of our theory for the study of courts throughout Eastern Europe and how it may well illuminate constitutional politics in other parts of the world. Before World War II, few European States had constitutional courts, and virtually none exercised any significant judicial review over legislation. After 1945 all that changed. West Germany, Italy, Austria, Cyprus, Turkey, Yugoslavia, Greece, Spain, Portugal and even France . . created tribunals with power to annul legislative enactments inconsistent with constitutional requirements. Many of these courts have become significant-even powerful-actors. -Herman Schwartz (1992:741) European constitutional courts have created situations in which legislators feel obliged to enter into constitutional discourse, both an internal discourse and a discourse with the court, to make and to take seriously constitutional arguments, and to cast and recast statutory language in the light of potential constitutional objections. -Martin Shapiro & Alec Stone (1994b:417) [T]here is an expansion of judicial power afoot in the world's political systems. -C. Neal Tate (1995:27) Today, at the end of the twentieth century, it is scarcely possible to recount, much less understand, the major political and social developments in industrial societies without attention to legal norms, courts and judges. -Sally J. Kenney, William A Reisinger & John C. Reitz (1999:1) These quotes, from legal academics and social scientists alike, are just the tip of the iceberg. Indeed, for more than a decade now, the community of law and society scholars has acknowledged the "active role" courts are playing "in ensuring the supremacy of constitutional principles" (Henckaerts & Van der Jeught 1998) and in democratization efforts throughout the world, but especially in Eastern Europe. This expansion of judicial power-or what some term the "judicialization of politics" (Tate & Vallinder 1995a) raises whole sets of intriguing questions, and unanswered questions at that.1 For, despite an acknowledgment of their importance, we "know precious little," as Gibson et al. (1998) recently lamented, "about the judicial and legal systems in countries outside the United States. We understand little or nothing about the degree to which various judiciaries are politicized; how judges make decisions; how, whether, and to what extent those decisions are implemented; how ordinary citizens influence courts, if at all; or what effect courts have on institutions and cultures" (p. 343). Certainly no single research endeavor can fill all the voids Gibson and his colleagues identify. What we do instead is tackle one question, albeit one that is of core concern to the Gibson team, as well as to many others laboring in this field: What role do constitutional courts play in the establishment and maintenance of democracies? For judicial specialists, this question is of obvious significance, having served as a focal point for studies on the U.S. Supreme Court for over four decades (Casper 1976; Dahl 1957; Gates 1992; Rosenberg 1991). But there are at least two other groups for which our question might resonate. …

A Matter of Interpretation: Federal Courts and the Law

Abstract: The 1997 book, A Matter of Interpretation: Federal Courts and the Law, is framed around a clear, accessible essay entitled “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” written by Supreme Court Justice Antonin Scalia. The second section of the book is composed of responses to Justice Scalia’s essay by such diverse, prominent scholars as Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; edited by AmyGutmann, the book concludes with Justice Scalia’s response to each comment.

The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices

Abstract: When a vacancy occurs on the Supreme Court, the president can attempt to use his power of nomination strategically in order to bring the Court in line with his own policy preferences. However, the president faces two constraints when attempting to do so. First, he may be constrained by the presence of continuing justices and the existing Court median. Second, he may be constrained by the Senate, which must approve his nominee. In this paper we develop and test a theory that examines the conditions under which a president is constrained in his choice of a nominee. Our results show that presidents can, and do, behave strategically with respect to Supreme Court nominations.

Legal Reasoning and Political Conflict

Abstract: The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred-and divided-by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law works in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law mediates disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must by necessity avoid broad, abstract reasoning. Why? For one thing, adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not-indeed, must not-delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as a core principle of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples-a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a bold new vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.