A Subversive Strand of the Warren Court (original) (raw)
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2019
participants in the South Africa Reading Group for their helpful comments and suggestions on earlier versions of this work. Angela Barstow and the staff of the Cleveland-Marshall Library, especially Jessica Mathewson, provided invaluable research assistance. The Cleveland-Marshall Fund provided generous research support. It was a pleasure working with the staff of the Utah Law Review in the editing and publication process. ' MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 220 (2008) ("Constitutions drafted after World War II almost universally included social welfare provisions."). UTAH LAW REVIEW relative ubiquity of these rights, however, judicial enforcement of them remains relatively controversial in theory and problematic in practice. 2 While concerns over judicial review arguably are heightened in the socioeconomic rights context, the arguments over enforcement of these rights largely mirror the debate over judicial enforcement of constitutional rights more generally. In particular, both debates focus on the undemocratic nature of judicial review and, consequently, are concerned with defining (and confining) the judicial role in ways that maximize its legitimacy. 3 Defenses of judicial review are connected to those of adjudication more generally. They often locate their legitimacy in a set of procedural characteristics-such as judicial independence, structured participation, and reasoned decisions-that promote objective results and serve the public interest. Lon Fuller in his famous essay The Forms and Limits ofAdjudication defines "the distinguishing characteristic of adjudication" as "the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor." 4 In a related vein, Owen Fiss argues that judicial review is rooted in a "conception of the judicial function [that] sees the judge as trying to give meaning to our constitutional values" and a "process through which that meaning is revealed or elaborated." 5 The more flexible, person-centered processes associated with alternative dispute resolution, or "ADR," are often contrasted with adjudication. Both critics and proponents of alternative dispute resolution often assume that, unlike adjudication, these processes are inherently limited to solving particular disputes and thus are unable to establish precedents applicable beyond a single dispute. 6
A Synthetic Theory of Judicial Review.docx
Within the scholarly literature, one can find many different theories that aim to provide justification for the practice of judicial review. Based on the assumption that none of these theories can succeed this task on its own and that a certain kind of interaction among them is necessary, this paper aims to outline and synthesize three distinct approaches to judicial review with the hope that they can compensate for each other's weaknesses and present a more convincing response to the question at hand, than they would have done so individually.
CONSTITUTIONAL COURTS SECURING THEIR LEGITIMACY: AN INSTITUTIONAL-PROCEDURAL ANALYSIS
forthcoming in A von Bogdandy, P Hüber and Ch Graberwarter, eds., Handbuch Ius Publicum Europaeum Band VII, CF Müller, 2020
It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country's population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country's political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe's Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using 'prudential' remedial techniques to attenuate political or social discontentment.
2015
There is a growing scholarly interest in the issue of unconstitutional constitutional amendments. Generally speaking, this issue concerns whether there should be some limits to constitutional amendments and whether courts should control those limits. In this sense, unconstitutional constitutional amendment exacerbates the debate concerning the legitimacy of judicial review qua institution, and moves the discussion one step further. vi CHAPTER 2. THE QUESTION OF THE LEG ALITY OF JUDICI AL REVIEW OF CONSTITUTIONAL AMENDMENTS ON SUBSTANTIVE GROUNDS: TWO THEORIES ON THE ULTIMATE CRITERI A OF V ALIDITY OF LAW .