Suchergebnisse

The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world's constitutions, and as women's rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine. Enter Julie Suk's wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily well-timed intervention, Suk documents the historical trajectory, and the current import, of the Equal Rights Amendment (the 'ERA') in the US.

The tensions that are often thought to exist between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency and the legitimacy for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court's experience with justiciable economic and social rights to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial, and peremptory stances. I suggest that these five stances are part of a general judicial role conception that I term catalytic, because it opens up the relationship between courts and the elected branches and lowers the political energy that is required in order to achieve a rights-protective outcome. Not only is this role conception able to account for a more accurate portrayal of economic and social rights adjudication; I argue that it is also normatively desirable under defined conditions. Finally, I contrast this role conception with others to show that a court's role in economic and social rights adjudication is dependent on its perception of itself as an institution of governance as well as on the institutional rules that support that perception.

The tensions that are often thought to exist between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency and the legitimacy for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court's experience with justiciable economic and social rights to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial, and peremptory stances. I suggest that these five stances are part of a general judicial role conception that I term catalytic, because it opens up the relationship between courts and the elected branches and lowers the political energy that is required in order to achieve a rights-protective outcome. Not only is this role conception able to account for a more accurate portrayal of economic and social rights adjudication; I argue that it is also normatively desirable under defined conditions. Finally, I contrast this role conception with others to show that a court's role in economic and social rights adjudication is dependent on its perception of itself as an institution of governance as well as on the institutional rules that support that perception.