Judicial Activism and the Administration of Civil Rights Policy (original) (raw)
Related papers
2013
Different legal systems provide different concepts of civil rights protection. In most countries the law is created by the legislative and is enforced by the executive, making the two powers dominating actors in the process of shaping the scope of the rights of the people. From time to time, such regulations are found unconstitutional by special Courts (Tribunals), which adapt them to constitutional reality. However, in common law countries, and especially in the United States of America, the concept of power of the legislative over civil rights is undermined by active judicial review undertaken by federal courts with the Supreme Court at the top. The lawmaking ability of the judges, their position within the branches of government, as well as the power of judicial review, leads to the dominating position of court-shaped principles and regulations over various social and political issues. Civil rights cases belong today to the most valuable legacy of the Supreme Court, in which prec...
When courts manage: Judicial" rowing" in desegregation governance
2007
To my chair, Dr. Wise, I owe more than can possibly be recounted here. Without the resources and expertise that he brought to bear on my behalf, this project would not have been possible. Together with Rosemary O'Leary, it was Charles Wise's passion and scholarship on the courts that indelibly shaped my own scholastic interests-most notably in the present research. He has been, for me, the consummate scholar, teacher and counselor. Thank you. In addition to my dissertation committee, there were many faculty, staff, and students that made my Indiana University doctoral experience not only fruitful but lastingly enjoyable. These include Beth Gazley,
Annales. Ethics in Economic Life, 2018
This article examines the U.S. Supreme Court's lesser-known educative role as an egalitarian institution within a broader deliberative democratic process. Scholars have argued that the Court's long asserted power of judicial review, especially in the equal protection and civil rights context, has been an overreach of the judicial branch's constitutional authority and responsibilities. Normative and empirical critiques have been centered on the aims of judicial review, and the challenges it poses in American political life. A core issue surrounding these critiques is that Justices are appointed not elected, and thus undermine the principle of majority rule in the U.S. constitutional democratic order. Although these critiques are legitimate in terms of claims about unelected Supreme Court Justices' seemingly discretionary powers over elected legislative bodies, and the uncertain policy implications of judicial pronouncements on the broader society, there is, nevertheless, a positive application of judicial review as a tool Justices use as part of their educative role overcoming the so-called "counter-majoritarian difficulty." Through a close reading of oral arguments in Brown vs. Board of Education (1954) and San Antonio vs. Rodriguez (1973)-two landmark cases invoking the Equal Protection Clause of the 14th Amendment to the federal Constitution-the article shows how appointed Justices adjudicate individual cases on appeal and attempt to educate (through an argumentative, reason-based and question-centered process) citizen-litigants and their legal representatives about the importance of equality, fairness and ethical responsibility even prior to rendering final decisions on policy controversies that have broader national social, political and economic implications.
‘Nixon’s Sabotage’: How Justice Burger Introduced the President’s View into Equal Protection Law
SSRN Electronic Journal, 2012
Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this "search for the bigoted decisionmaker" developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision of Swann v. Charlotte-Mecklenburg Board of Education played in laying the foundations for this definition of unconstitutional discrimination. Swann is important because it vividly illustrates how the elected branches gave traction to the present definition of unconstitutional discrimination. The justices' archives reveal the Swann Court's uncertainty about focusing on the racial motives of present authorities as the basis for finding unconstitutional discrimination, and that a narrow majority preferred a draft of the opinion that eschewed this approach. Yet all © 2013 Danieli Evans. * J.D., Yale Law School. This is the first of two companion pieces addressing how politics influenced the meaning of unconstitutional discrimination. The second will be published in Volume 34 of the Boston College Journal of Law & Social Justice. I am very grateful to Bruce Ackerman for exposing me to the politics of the Civil Rights Era, and for directing me to investigate the justices' papers from the school desegregation cases discussed in this essay. For much more comprehensive analysis of the interplay between Congress, the President, and the Supreme Court in shaping the constitutional values that emerged from the Civil Rights Era, see Bruce Ackerman, We the People, Volume 3: Civil Rights Revolution (forthcoming 2014). I am also very much indebted to Reva Siegel's work showing the ways federal courts employed effects evidence to review decisions of representative government in the Equal Protection cases of the 1970s, and how the Supreme Court's discriminatory purpose cases replaced oversight with deferential review.
Judicial Activism with a Difference
pronouncement of implementation of the rule of law, essential for the presentation of functional democracy. The word ‘activism’ means “being active”, ‘doing things with decision’ and activist is the ‘one’ who favours intensified activities. Black’s Law Dictionary defines Judicial Activism as a “philosophy of judicial decision-making whereas judges allow their personal views about public policy, among other factors, to guide their decisions.” Judicial Activism means the active role played by the judiciary in promoting justice. Judicial Activism to define broadly is the assumption of an active role
The Relevance of the Judicial Activism vs. Judicial Restraint Discourse
Tulsa Law Review, 2011
This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Ariel L. Bendor, The Relevance of the Judicial Activism vs. Judicial Restraint Discourse, 47 Tulsa L. Rev. 331 (2013).
JUDICIAL ACTIVISM IN – MODERN ERA
Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947” “Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the “Judicial Activists” and Justices Frankfurter, Jackson, and Burton as the “Champions of Self Restraint.” Justice Reed and Chief Justice Vinson comprised a middle group.