What Judge Bork Should Have Said (original) (raw)
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Federalism' s Old Deal: What' s Right and Wrong with Conservative Judicial Activism
In an article based on his Fall, 1999 Reuschlein Distinguished Lecture at Villanova Law School, Professor Shane argues that the Supreme Court is leading a misguided project of conservative judicial activism aimed at curtailing Congress's commercial regulatory powers in the interest of preserving state autonomy. This activist initiative has been defended by Fourth Circuit Chief Judge J. Harvie Wilkinson, in Brzonkala v. Virginia Polytechnic Institute, which overturned the civil damages remedy enacted as part of the Violence Against Women Act. Professor Shane argues, however, that the federal courts have not shown any compelling institutional need with regard to federalism that justifies inventing new limitations on congressional authority. No less than Congress have the States amassed political and economic power unimagined by the Framers. Nor did the Supreme Court in Lopez v. United States formulate a workable and coherent legal doctrine for limiting Congress's Commerce Clause authority that relates in any sensible way to the values of federalism. Judge Wilkinson's defense contends that Lopez-style activism is necessary to avoid judicial abdication of the courts' interpretive authority regarding the Constitution, and that it is better than Lochner-style activism because it does not disable state legislative authorities from dealing with social problems. Shane argues that Wilkinson misconstrues the nature of the courts' interpretive authority and ignores the importance of empowering the national legislative authority to deal with national problems. Wilkinson argues also that Lopez-style activism is better than Lochner-style activism because it does not advance the agenda of a particular constituency, such as big business. Shane responds that the current cases do advance the agenda of an ideological, rather than economic constituency, and that the majority Fourth Circuit opinion in Brzonkala is a "culture wars barrage" that violates appropriate norms of judicial temperament. Shane concludes that Congress is better viewed as a partner, rather than as a threat, if states and localities are to preserve effective autonomy during the era of globalization.
Liberal politics and the judiciary: The supreme court and american democracy
Res Publica, 1997
In recent years, constitutional government has come to be identified largely with the judicial protection of individual rights. This characterisation of constitutionalism draws inspiration from both standard liberal concerns and the recent practice of the United States Supreme Court. Indeed, there has been a tendency amongst contemporary analytical American legal and political philosophers - most notably John Rawls and Ronald Dworkin and those influenced by, or critical of, their work - to conflate liberalism with the judgments of the Warren and Burger Courts. As a result, the philosophical treatment of a whole range of important social issues, from abortion and pornography, to racial and gender discrimination, has been framed to a remarkable degree by the concerns of American constitutional jurisprudence. Curiously, however, scholars outside America rarely have a direct knowledge of these landmark decisions or the reasoning underlying them. In consequence, a somewhat rarefied understanding of liberal principles and judicial decision making has emerged amongst many social and political philosophers, that rarely engages with the real contexts within which such ideals supposedly operate. It is the great merit of the books under review that in different ways they all seek to explore the actual theory and practice of the Supreme Court. In the process, they are led, albeit to varying extent, to critically examine the philosophical assumptions as well as the workings of the liberal interpretation of the American Constitution and its related view of democracy.
2015
J udicial scholars often struggle to disentangle the effects of law and policy preferences on U.S.Supreme Court decision making. We employ a new approach to measuring the effect—if any—ofthe law on justices ’ decisions. We use positions taken on Supreme Court cases by members of Congress and presidents to identify policy components of voting. Doing so enables us to isolate the effects of three legal doctrines: adherence to precedent, judicial restraint, and a strict interpretation of the First Amendment’s protection of speech clause. We find considerable evidence that legal factors play an important role in Supreme Court decision making. We also find that the effect of legal factors varies across justices. We don’t turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law....They are constrained when they do that....They need to be bound down by rules and precedents:... the rules, ...
Federalism's 'Old Deal': What is Right and Wrong With Conservative Judicial Activism
SSRN Electronic Journal, 2000
In an article based on his Fall, 1999 Reuschlein Distinguished Lecture at Villanova Law School, Professor Shane argues that the Supreme Court is leading a misguided project of conservative judicial activism aimed at curtailing Congress's commercial regulatory powers in the interest of preserving state autonomy. This activist initiative has been defended by Fourth Circuit Chief Judge J. Harvie Wilkinson, in Brzonkala v. Virginia Polytechnic Institute, which overturned the civil damages remedy enacted as part of the Violence Against Women Act. Professor Shane argues, however, that the federal courts have not shown any compelling institutional need with regard to federalism that justifies inventing new limitations on congressional authority. No less than Congress have the States amassed political and economic power unimagined by the Framers. Nor did the Supreme Court in Lopez v. United States formulate a workable and coherent legal doctrine for limiting Congress's Commerce Clause authority that relates in any sensible way to the values of federalism. Judge Wilkinson's defense contends that Lopez-style activism is necessary to avoid judicial abdication of the courts' interpretive authority regarding the Constitution, and that it is better than Lochner-style activism because it does not disable state legislative authorities from dealing with social problems. Shane argues that Wilkinson misconstrues the nature of the courts' interpretive authority and ignores the importance of empowering the national legislative authority to deal with national problems. Wilkinson argues also that Lopez-style activism is better than Lochner-style activism because it does not advance the agenda of a particular constituency, such as big business. Shane responds that the current cases do advance the agenda of an ideological, rather than economic constituency, and that the majority Fourth Circuit opinion in Brzonkala is a "culture wars barrage" that violates appropriate norms of judicial temperament. Shane concludes that Congress is better viewed as a partner, rather than as a threat, if states and localities are to preserve effective autonomy during the era of globalization. Keywords: judicial activism, conservatism, federalism, Tenth Amendment, commerce power, constitutional law
The Five Days in June When Values Died in American Law
Akron law review, 2015
in Casey. 4 In these two opinions, all of the Justices ultimately agreed that normative judgments are just human constructions. Future Justices of the Supreme Court thereafter abdicated authority to set objective standards over a wide range of issues, ultimately resulting in a regime of constitutional law dominated by what I call here the death of values in American Law. Isn't this surprising? Avant garde law professors and postmodern thinkers may make arguments about the non-foundational nature of reality. But do we expect Supreme Court Justices to talk this way? Consider the statement by the late Richard Rorty that "non-theists make better citizens of democratic societies than theists" because nontheists believe "that agreement among human beings is the source of all norms." 5 Are we then to consider all nine Justices on the United States Supreme Court to be functional atheists as of June 1992? If so, have we law professors told this to our students? Have we acknowledged, in the classroom, the arrival of nihilism? These judicial statements are emblematic of where American law and society stand today. Once the reality of nihilism is acknowledged, its presence can be widely seen. The rest of this Article sets a wide frame to do that. Part II of this Article provides the setting and the cases giving rise to the death of values. Part III of this Article describes how the death of values manifests in American culture generally and among law days in June 1992 that I reference in this Article. Brown and Bolling reflected a strong, selfconfident, postwar American commitment to the good. Even the noted legal positivist, Robert Bork, referred to Brown as "the greatest moral achievement of our constitutional law" in his opening statement at the confirmation hearing for his nomination to the Supreme Court.
From Bakke to Grutter and Gratz : The Supreme Court as a Policymaking Institution
Review of Policy Research, 2004
Finding the best means for ensuring equal opportunities for women and minorities has long been controversial and initial efforts to do so were addressed by executive orders, and later the historic Civil Rights Act of 1964. However, this paper argues, since its initial Bakke decision in 1978, it is the Supreme Court that has set policy in this area. In the twenty-five years between that decision and the recent Gratz and Grutter decisions, the court has shifted in its stance, in many cases declaring unconstitutional what it once sanctioned. That shift has not resulted from changes in laws or new amendments to the Constitution, nor can it be seen as reflecting public opinion, as that is not clear-cut. Rather, affirmative action policy has reflected the ideological stances of the justices sitting at the time a decision was rendered. The paper concludes with an assessment as to what this means for a democracy. The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. .. the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address In June of 2003, the Supreme Court handed down two landmark decisions defining the acceptable parameters of the use of affirmative action in university admissions decisions (Grutter v. Bollinger and Gratz v. Bollinger). The importance of these cases was reflected in many ways, from the dozens of organizations and individuals who hoped to influence the outcome through amicus briefs to the extensive news coverage the cases received. Commentators were quick to express their support or opposition to the verdict, but what was left unquestioned was whether it should be the Supreme Court, the unelected branch of government, who sets policy in this area. The purpose of this paper is to examine the court's policymaking role through the lens of affirmative action. The extent to which the Supreme Court should and does engage in policymaking has long been controversial. The justices do not do so directly, of course, but rather through the power of judicial review; that is, in declaring policies to be in violation of law or the Constitution. It is clear from Federalist 78 that Alexander Hamilton (1961) saw this power as necessary to protect "the minority party in the community" from "serious oppression" that may occur if the majority has a mind to enact legislation counter to the will of the people as represented in the Constitution. From another point of view, this creates what Alexander Bickel (1962) called the "countermajoritarian difficulty." He wrote: "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it" (Bickel, 1962, pp. 16-17).