Justice Kennedy and the Counter-Majoritarian Difficulty
In: 70 Hastings Law Journal 1213 (2019)
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In: 70 Hastings Law Journal 1213 (2019)
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In: Polity, Band 47, Heft 4, S. 420-460
ISSN: 1744-1684
In: Polity: the journal of the Northeastern Political Science Association, Band 47, Heft 4, S. 420
ISSN: 0032-3497
In: Studies in law, politics, and society, Band 58, S. 1-27
Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. I argue that the presence of rights in American constitutional discourse exacerbates the counter-majoritarian nature of judicial review. We do better to recast the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. In doing so, I proffer a novel analysis of liberal theory's extant commitment to public reason, one that conceptualizes public reason as representing the scope of state power. [Copyright Elsevier Ltd.]
In: Special Issue: The Discourse of Judging; Studies in Law, Politics and Society, S. 1-27
In: Perspectives on politics, Band 5, Heft 3, S. 447
ISSN: 1541-0986
In: European Constitutional Law Review, Band 6, S. 6-27
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In: Perspectives on politics: a political science public sphere, Band 5, Heft 3, S. 447-459
ISSN: 1537-5927
World Affairs Online
In: Perspectives on politics: a political science public sphere, Band 4, Heft 2
ISSN: 1537-5927
In: Vanderbilt Journal of Transnational Law, Band 52
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In: Canadian Journal of Law and Jurisprudence, Band XXV, Heft 1
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Working paper
In: Global constitutionalism: human rights, democracy and the rule of law, Band 8, Heft 3, S. 605-638
ISSN: 2045-3825
Abstract:In the aftermath of the 2008 financial crisis courts and rights took a backseat to demands of markets and international financial institutions for austerity. Deference and judicial restraint were prevalent in austerity litigation across various European jurisdictions. This article argues that the traditional view of deference to political branches on socio-economic rights should be revised in our political-economic context. Drawing on the work of German sociologist Wolfgang Streeck on representation failures of democratic institutions in our neoliberal era, the article argues that law's abnegation in this sphere has the effect of securing and legitimising neoliberal hegemony and serves the interests of owners of financial capital. Deference in order to avoid judicial overreach does not entail deference to democracy as legislatures have come to view financial markets as their constituency alongside the general citizenry. As public finances have become marketised, deference to legislatures amounts to deference to markets. Judicial minimalism creates not more democracy but a specific set of winners and losers. In light of severe representation failures where legislatures become tools of market justice we might, subject to various caveats, view a more active judicial role as democracy-enhancing and as a potential counterweight in favour of social justice.
In: Perspectives on politics, Band 14, Heft 2, S. 391-409
ISSN: 1541-0986
For centuries, politicians, activists, and academics have criticized the American system of judicial review as democratically illegitimate. In response, dozens of scholars have striven to justify the institution's place in a democratic political system. A compelling justification for judicial review must provide a realistic description of its function and a normatively attractive understanding of that function. Unfortunately, the most prominent justifications suffer from empirical or theoretical problems. However, recent empirical evidence suggests an "acquittal theory" that meets both criteria. On this view, courts armed with judicial review can thwart majority will by relieving individuals from government sanctions, but they lack the power to independently impose sanctions. This asymmetry suggests a resolution to the countermajoritarian difficulty that does not rely on judicial wisdom or behavior: the nature of judicial power ensures that judicial review reliably promotes a core democratic value—freedom from government domination—without seriously threatening other democratic values.
In: 6 ITALIAN. L. J. 627 (2020)
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