Suchergebnisse

This Article will argue that now is the time for the Court to decisively intervene in the abortion controversy by issuing a maximalist Roe-like decision; today's politics do not support an indeterminate standard like Casey's undue burden test. In other words, assuming that there is a constitutional right to abortion, today's Court should assume the heroic role Erwin Chemerinsky embraces in The Case Against the Supreme Court and other writings; specifically, the Court should "protect the rights of minorities who cannot rely on the political process." For Chemerinsky, protecting the rights of minorities is the "primary reason for having a Supreme Court," and is "why the Justices of the Supreme Court. are granted life tenure." In explaining why today's Court should decisively protect abortion rights, this Article will evaluate a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left- leaning academics, advocates, and judges have made this criticism- including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched prevailing views of popular opinion and elected official preferences. In the pages that follow, I will argue that I and others miscalculated the possible virtues of a rigid decisional rule. In particular, I will explain how party polarization and the related rise of the Tea Party calls into question the benefits of an indeterminate standard in the modern abortion context. And while I will not disavow earlier writings, I will contend that events of the past five years suggest that proponents of the Casey compromise need to recognize that today's political dynamic is far different than the political dynamic in 1973 (when ...

Claims that interest group litigation strategy was relatively unimportant to the Warren Court's decision in Brown v. Board of Education of Topeka, Kansas (1954) & the Rehnquist Court's decision to revitalize federalism in United States v. Lopez (1995). These decisions, while on the surface resemble the classic countermajoritarian behavior attributed the Supreme Court as it strikes down federal & state legislation, are contended to be linked with majoritarian social & political forces. J. Zendejas

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will he paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts have little reason to disregard article III constraints to resolve constitutional challenges to federal laws.

Analysis of the U.S. Supreme Court decision in Lynch v. Donnelly, upholding as constitutional the city of Pawtucket, Rhode Island's Christmas display of the nativity scene. Includes prior religious symbol case law.

Are Supreme Court justices swayed by the political environment that surrounds them? Most people think 'yes,' and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however. As the eminent law and politics scholars Neal Devins and Lawrence Baum show in this book, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of.