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Intro -- Contents -- Preface -- Introduction. Three Stories about Courts -- Part I. Rights on the Left, and Rights on the Right -- One. Rights on the Left -- Two. Rights on the Right -- Part II. Courts, Democracy, and Policy Change -- Three. Are Judges Umpires? -- Four. Are Judges Tyrants? -- Five. Are Judges Sideshows? -- Conclusion. Judicial Politics in Polarized Times -- Appendix A. Coding Procedures for Polarization Analysis -- Notes -- References -- Index.

AbstractThis paper assesses the performance of the Supreme Court as democratic guardrail during five prior periods of democratic crisis in the United States. It finds that most such periods witnessed efforts by the governing regime to entrench themselves in power, and that the Court has rarely provided an effective check on such democratic abuses. Rather than serving as a reliable democratic guardrail, the Court has regularly exercised what Dixon and Landau call "weak‐form abusive judicial review"; that is, it has declined to check attacks on democracy emerging from other centers of power. On one occasion, the Court has undermined democracy even more directly via "strong‐form abusive judicial review"; that is, the Court itself attacked key democratic guardrails. This historical record provides a helpful baseline for evaluating the Court's performance during the Trump era, when it has taken actions that both protect and undermine democratic health. Conflicting signs indicate that the Court is playing a more democracy‐protective role than most of its predecessors in some respects, but a more democracy‐undermining role in others. As such, it is too soon to say with confidence whether the contemporary Court will be remembered, on balance, for resolving or exacerbating a system‐threatening constitutional crisis.

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson's choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they will impose an ever-tightening vice on incontrovertible free expression values; if they do not, they will send clear signals of unequal citizenship to those groups excluded from the laws' protection. This paper elaborates this dilemma via exploration of a range of contemporary European legal responses to homophobic and Islamophobic speech.