Stefanie A. Lindquist and Frank B. Cross
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195370850
- eISBN:
- 9780199870790
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370850.003.0001
- Subject:
- Law, Comparative Law
This chapter outlines the history of the concept of “judicial activism” as well as the basic contours of the political and academic debate over the practice. The chapter explores the development of ...
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This chapter outlines the history of the concept of “judicial activism” as well as the basic contours of the political and academic debate over the practice. The chapter explores the development of the debate over activism within the electorate, political elites, and in the context of Supreme Court confirmation hearings. It also considers the voluminous academic literature on the topic, with generally focuses on the potential for the Supreme Court to act in a “countermajoritarian” fashion and concern over the justices' exercising their substantial powers of judicial review in furtherance of their own policy preferences.Less
This chapter outlines the history of the concept of “judicial activism” as well as the basic contours of the political and academic debate over the practice. The chapter explores the development of the debate over activism within the electorate, political elites, and in the context of Supreme Court confirmation hearings. It also considers the voluminous academic literature on the topic, with generally focuses on the potential for the Supreme Court to act in a “countermajoritarian” fashion and concern over the justices' exercising their substantial powers of judicial review in furtherance of their own policy preferences.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.003.003
- Subject:
- Psychology, Forensic Psychology
This chapter describes the crime and the subsequent police interrogation and trial, all of which led to the 1966 Supreme Court decision ruling that criminal defendants had the right to counsel or to ...
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This chapter describes the crime and the subsequent police interrogation and trial, all of which led to the 1966 Supreme Court decision ruling that criminal defendants had the right to counsel or to remain silent when facing a possible interrogation. The disagreements between justices which led to a number of dissenting opinions are analyzed.Less
This chapter describes the crime and the subsequent police interrogation and trial, all of which led to the 1966 Supreme Court decision ruling that criminal defendants had the right to counsel or to remain silent when facing a possible interrogation. The disagreements between justices which led to a number of dissenting opinions are analyzed.
Robert Pitofsky (ed.)
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.001.0001
- Subject:
- Economics and Finance, Behavioural Economics
This book came about due to the growing concern that antitrust, a system of regulation that for over a century has had wide professional and public support, is under attack. The recent trend appears ...
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This book came about due to the growing concern that antitrust, a system of regulation that for over a century has had wide professional and public support, is under attack. The recent trend appears to be toward more limited interpretation of doctrine (especially in the Supreme Court) and less aggressive federal enforcement. Part of the reason for the decline in enforcement is that for almost fifty years extremely conservative economic analysis (sometimes referred to as “Chicago School”) has dominated scholarship in the area. With the exceptionally liberal “Warren Court” as their target, two brilliant academics, Richard Posner and Robert Bork, led a small army of academics in devastating criticism of the output of the Warren Court. Those in favor of the Chicago School's limited and strictly economic approach were handed an enormous political boost when President Ronald Reagan announced that “government was the problem and not the solution.” Contributing towards this collection of chapters are Republicans and Democrats, lawyers and scholars left of center and right of center, one-time antitrust enforcers, and private sector representatives. Virtually all share the view that antitrust is better today, more rigorous, more reasonable, more sophisticated in terms of economics, than it was forty or fifty years ago. But virtually all also confess to a sense of unease about the current direction of antitrust interpretation and enforcement. Specific concerns include current preferences for economic models over facts, the tendency to assume that the free market will cure all market imperfections, the belief that only efficiency matters, and outright mistakes in matters of doctrine.Less
This book came about due to the growing concern that antitrust, a system of regulation that for over a century has had wide professional and public support, is under attack. The recent trend appears to be toward more limited interpretation of doctrine (especially in the Supreme Court) and less aggressive federal enforcement. Part of the reason for the decline in enforcement is that for almost fifty years extremely conservative economic analysis (sometimes referred to as “Chicago School”) has dominated scholarship in the area. With the exceptionally liberal “Warren Court” as their target, two brilliant academics, Richard Posner and Robert Bork, led a small army of academics in devastating criticism of the output of the Warren Court. Those in favor of the Chicago School's limited and strictly economic approach were handed an enormous political boost when President Ronald Reagan announced that “government was the problem and not the solution.” Contributing towards this collection of chapters are Republicans and Democrats, lawyers and scholars left of center and right of center, one-time antitrust enforcers, and private sector representatives. Virtually all share the view that antitrust is better today, more rigorous, more reasonable, more sophisticated in terms of economics, than it was forty or fifty years ago. But virtually all also confess to a sense of unease about the current direction of antitrust interpretation and enforcement. Specific concerns include current preferences for economic models over facts, the tendency to assume that the free market will cure all market imperfections, the belief that only efficiency matters, and outright mistakes in matters of doctrine.
- Published in print:
- 2004
- Published Online:
- March 2013
- ISBN:
- 9780226428840
- eISBN:
- 9780226428864
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226428864.003.0004
- Subject:
- Political Science, American Politics
During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's ...
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During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's and Black's distinctive approaches to constitutional adjudication led each of them to support certain elements of the rights revolution, but they remained sharply critical of others, and they were, in fact, the leading dissenters during the heyday of the Warren Court. Harlan reiterated that the Due Process Clause was an independent guarantee of fundamental fairness, the content of which should be determined by reference to the nation's legal history and traditions. Black and especially Harlan rejected the Court's emerging egalitarianism, as it violated their fundamental conceptions of individualism and limited government.Less
During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's and Black's distinctive approaches to constitutional adjudication led each of them to support certain elements of the rights revolution, but they remained sharply critical of others, and they were, in fact, the leading dissenters during the heyday of the Warren Court. Harlan reiterated that the Due Process Clause was an independent guarantee of fundamental fairness, the content of which should be determined by reference to the nation's legal history and traditions. Black and especially Harlan rejected the Court's emerging egalitarianism, as it violated their fundamental conceptions of individualism and limited government.
Evan Tsen Lee
- Published in print:
- 2011
- Published Online:
- January 2011
- ISBN:
- 9780195340341
- eISBN:
- 9780199867240
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340341.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Many legal scholars believe that judges should not be “activists.” But exactly what does it mean for judges to practice “restraint,” and how did that set of practices evolve in America? This book ...
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Many legal scholars believe that judges should not be “activists.” But exactly what does it mean for judges to practice “restraint,” and how did that set of practices evolve in America? This book traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the “vested property rights” courts of the early 20th century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as “standing” and “abstention” out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices — John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia.Less
Many legal scholars believe that judges should not be “activists.” But exactly what does it mean for judges to practice “restraint,” and how did that set of practices evolve in America? This book traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the “vested property rights” courts of the early 20th century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as “standing” and “abstention” out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices — John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia.
Sotirios A. Barber and James E. Fleming
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195328578
- eISBN:
- 9780199855339
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328578.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's ...
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This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.Less
This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.
Christopher W. Schmidt
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226522302
- eISBN:
- 9780226522586
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226522586.003.0006
- Subject:
- Political Science, American Politics
This chapter examines the Supreme Court’s confrontation with the sit-in cases. Between 1961 and 1964, the justices faced round after round of appeals of criminal convictions of sit-in protesters. ...
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This chapter examines the Supreme Court’s confrontation with the sit-in cases. Between 1961 and 1964, the justices faced round after round of appeals of criminal convictions of sit-in protesters. These cases were the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. The Court overturned the convictions on narrow, fact-based grounds, avoiding the looming constitutional question of the limits of “state action” under the Fourteenth Amendment. In late 1963, in the case of Bell v. Maryland, when another minimalist opinion appeared impossible, a majority of the Court, led by Justice Hugo Black, was prepared to explicitly reject the students’ constitutional claim. This outcome was only averted when, in the spring of 1964, with Congress poised to pass the Civil Rights Act, Justice Black’s majority dissolved, and a fractured Court issued yet another narrow opinion, with no majority to resolve the constitutional question one way or the other. This chapter explains why the sit-in cases caused such dramatic difficulties for the Court.Less
This chapter examines the Supreme Court’s confrontation with the sit-in cases. Between 1961 and 1964, the justices faced round after round of appeals of criminal convictions of sit-in protesters. These cases were the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. The Court overturned the convictions on narrow, fact-based grounds, avoiding the looming constitutional question of the limits of “state action” under the Fourteenth Amendment. In late 1963, in the case of Bell v. Maryland, when another minimalist opinion appeared impossible, a majority of the Court, led by Justice Hugo Black, was prepared to explicitly reject the students’ constitutional claim. This outcome was only averted when, in the spring of 1964, with Congress poised to pass the Civil Rights Act, Justice Black’s majority dissolved, and a fractured Court issued yet another narrow opinion, with no majority to resolve the constitutional question one way or the other. This chapter explains why the sit-in cases caused such dramatic difficulties for the Court.
- Published in print:
- 2004
- Published Online:
- March 2013
- ISBN:
- 9780226428840
- eISBN:
- 9780226428864
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226428864.003.0005
- Subject:
- Political Science, American Politics
This chapter describes the doctrinal influence of these political developments throughout the 1970s. The rights-protecting constitutional doctrines of the Warren Court were buffeted by the ...
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This chapter describes the doctrinal influence of these political developments throughout the 1970s. The rights-protecting constitutional doctrines of the Warren Court were buffeted by the conservative critiques of both judicial power and modern liberalism itself, but they were also increasingly entrenched as a core feature of contemporary American democracy. Nixon's most important campaign pledge in 1968 regarding the Court was to appoint conservative southerners and “strict constructionists,” and he quickly had four opportunities to do so, as Justices Earl Warren, Abe Fortas, Hugo Black, and John Harlan all retired during his first term in office. Conservatives continued to denounce liberal activism as undemocratic and hence illegitimate, but in a variety of constitutional contexts, they had now articulated clear demands for the active exercise of judicial power on behalf of conservative principles.Less
This chapter describes the doctrinal influence of these political developments throughout the 1970s. The rights-protecting constitutional doctrines of the Warren Court were buffeted by the conservative critiques of both judicial power and modern liberalism itself, but they were also increasingly entrenched as a core feature of contemporary American democracy. Nixon's most important campaign pledge in 1968 regarding the Court was to appoint conservative southerners and “strict constructionists,” and he quickly had four opportunities to do so, as Justices Earl Warren, Abe Fortas, Hugo Black, and John Harlan all retired during his first term in office. Conservatives continued to denounce liberal activism as undemocratic and hence illegitimate, but in a variety of constitutional contexts, they had now articulated clear demands for the active exercise of judicial power on behalf of conservative principles.
- Published in print:
- 2004
- Published Online:
- March 2013
- ISBN:
- 9780226428840
- eISBN:
- 9780226428864
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226428864.003.0003
- Subject:
- Political Science, American Politics
There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The ...
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There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The core principle of American constitutional democracy Justice Frankfurter was majoritarianism and the chief danger was judicial tyranny. For him, the essence of the judicial function was the exercise of judgment in balancing competing values. The Warren Court responded to the New Deal constitutional revolution not by abandoning judicial power but by articulating a new set of constitutionally protected rights and liberties. This choice rendered Frankfurter's vision of judicial deference a relic of the past; the Court might someday recover it, but that was unlikely for the foreseeable future.Less
There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The core principle of American constitutional democracy Justice Frankfurter was majoritarianism and the chief danger was judicial tyranny. For him, the essence of the judicial function was the exercise of judgment in balancing competing values. The Warren Court responded to the New Deal constitutional revolution not by abandoning judicial power but by articulating a new set of constitutionally protected rights and liberties. This choice rendered Frankfurter's vision of judicial deference a relic of the past; the Court might someday recover it, but that was unlikely for the foreseeable future.
Tinsley E. Yarbrough
- Published in print:
- 2008
- Published Online:
- March 2012
- ISBN:
- 9780195141238
- eISBN:
- 9780199851577
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195141238.003.0007
- Subject:
- Law, Legal History
In spite of how it was known to advocate a certain degree of civil liberty, the Warren Court limited its functions and guarantees to civil liberties to the rights mentioned within the Constitution. ...
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In spite of how it was known to advocate a certain degree of civil liberty, the Warren Court limited its functions and guarantees to civil liberties to the rights mentioned within the Constitution. Griswold v. Connecticut, a Warren Court 7–2 majority, attempted to appeal to a certain aspect of marital privacy that concerned the ban on the use of contraceptives. Justice Douglas, its author, aims to incorporate specific constitutional provisions to the Court's decision. The Roe case, a 7–2 Burger Court majority, however, seemed inconsistent with President Nixon's justice principles. Chief Justice Burger was not at ease with how the Court took on the Roe case, as he declared that Baird in Eisendtadt v. Baird was appropriately convicted for handling and distributing such medical material as vaginal foam without a license, and that the marital status of the woman whom he had provided with such was irrelevant to the case. This chapter expresses most of Justice Brennan's opinions regarding abortion and other such concerns and how this and other arguments have served as foundations for the Roe v. Wade case.Less
In spite of how it was known to advocate a certain degree of civil liberty, the Warren Court limited its functions and guarantees to civil liberties to the rights mentioned within the Constitution. Griswold v. Connecticut, a Warren Court 7–2 majority, attempted to appeal to a certain aspect of marital privacy that concerned the ban on the use of contraceptives. Justice Douglas, its author, aims to incorporate specific constitutional provisions to the Court's decision. The Roe case, a 7–2 Burger Court majority, however, seemed inconsistent with President Nixon's justice principles. Chief Justice Burger was not at ease with how the Court took on the Roe case, as he declared that Baird in Eisendtadt v. Baird was appropriately convicted for handling and distributing such medical material as vaginal foam without a license, and that the marital status of the woman whom he had provided with such was irrelevant to the case. This chapter expresses most of Justice Brennan's opinions regarding abortion and other such concerns and how this and other arguments have served as foundations for the Roe v. Wade case.
Jeffrey Brand-Ballard
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780195342291
- eISBN:
- 9780199867011
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342291.003.0005
- Subject:
- Philosophy, Political Philosophy
This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an ...
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This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an all-things-considered reason to reach a different result than the result required by law, if the law permitted him to do so. It is explained why a case in which the law requires conviction for a malum prohibitum offense is not typically a suboptimal-result case. Numerous examples that reasonable people might regard as suboptimal-result cases are mentioned. Two assumptions underlying the existence of suboptimal-result cases are identified: that the law is at least partially determinate and that the legal system is imperfect. The chapter also explains why the existence of legal principles would not preclude suboptimal-result cases. It also addresses the question whether all suboptimal-result cases are “hard cases.”Less
This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an all-things-considered reason to reach a different result than the result required by law, if the law permitted him to do so. It is explained why a case in which the law requires conviction for a malum prohibitum offense is not typically a suboptimal-result case. Numerous examples that reasonable people might regard as suboptimal-result cases are mentioned. Two assumptions underlying the existence of suboptimal-result cases are identified: that the law is at least partially determinate and that the legal system is imperfect. The chapter also explains why the existence of legal principles would not preclude suboptimal-result cases. It also addresses the question whether all suboptimal-result cases are “hard cases.”
Barry C. Feld
- Published in print:
- 2005
- Published Online:
- March 2013
- ISBN:
- 9780226319889
- eISBN:
- 9780226319919
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226319919.003.0005
- Subject:
- Law, Family Law
More than three-quarters of a century ago, World War I curtailed European immigration and created a demand for African-American southern laborers to work in northern factories in the United States. ...
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More than three-quarters of a century ago, World War I curtailed European immigration and created a demand for African-American southern laborers to work in northern factories in the United States. The issue of race has had two distinct and contradictory influences on the juvenile justice theory and practice during the second half of the twentieth century. Initially, the Warren Court's due process revolution and Gault attempted to enhance civil rights, protect minority citizens, and limit the coercive powers of the state. But Gault's provision of procedural rights at trial legitimated punishment and fostered a procedural and substantive convergence with criminal courts. Three decades of judicial decision, legislative amendments, and administrative changes have converted the juvenile court into a scaled-down, second-class criminal court that provides neither therapy nor justice for young offenders.Less
More than three-quarters of a century ago, World War I curtailed European immigration and created a demand for African-American southern laborers to work in northern factories in the United States. The issue of race has had two distinct and contradictory influences on the juvenile justice theory and practice during the second half of the twentieth century. Initially, the Warren Court's due process revolution and Gault attempted to enhance civil rights, protect minority citizens, and limit the coercive powers of the state. But Gault's provision of procedural rights at trial legitimated punishment and fostered a procedural and substantive convergence with criminal courts. Three decades of judicial decision, legislative amendments, and administrative changes have converted the juvenile court into a scaled-down, second-class criminal court that provides neither therapy nor justice for young offenders.
Thomas M. Keck
- Published in print:
- 2004
- Published Online:
- March 2013
- ISBN:
- 9780226428840
- eISBN:
- 9780226428864
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226428864.001.0001
- Subject:
- Political Science, American Politics
When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them ...
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When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism. Ranging from 1937 to the present, this book traces the legal and political forces that have shaped the modern Court. The book argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. The book focuses in particular on the role of Justices O'Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.Less
When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism. Ranging from 1937 to the present, this book traces the legal and political forces that have shaped the modern Court. The book argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. The book focuses in particular on the role of Justices O'Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.
Vicki C. Jackson
- Published in print:
- 2014
- Published Online:
- March 2016
- ISBN:
- 9781479868858
- eISBN:
- 9781479821303
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479868858.003.0006
- Subject:
- Political Science, Political Theory
This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the ...
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This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the United States's constitutional system. It first questions the aptness of the U.S.-EU comparison and the conception of subsidiarity as being primarily about externalities, with particular emphasis on the problem of “bricolage” and constitutional multifunctionalism. It then notes the lack of a basis in comparative experience for strong judicially enforced versions of subsidiarity and goes on to propose an alternative “proceduralist” approach to the judiciary's role in advancing subsidiarity in the U.S. constitutional context. It also looks at the Warren Court and how it reinforced federalism by nationalizing the Bill of Rights in the U.S. Constitution, thus dramatically improving the legitimacy and efficacy of state governments.Less
This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the United States's constitutional system. It first questions the aptness of the U.S.-EU comparison and the conception of subsidiarity as being primarily about externalities, with particular emphasis on the problem of “bricolage” and constitutional multifunctionalism. It then notes the lack of a basis in comparative experience for strong judicially enforced versions of subsidiarity and goes on to propose an alternative “proceduralist” approach to the judiciary's role in advancing subsidiarity in the U.S. constitutional context. It also looks at the Warren Court and how it reinforced federalism by nationalizing the Bill of Rights in the U.S. Constitution, thus dramatically improving the legitimacy and efficacy of state governments.
- Published in print:
- 2011
- Published Online:
- March 2013
- ISBN:
- 9780226436975
- eISBN:
- 9780226436968
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226436968.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter investigates the development of habeas review of state convictions and sentences in noncapital cases under 28 U.S.C. § 2254. The Habeas Corpus Act of 1867 expanded the availability of ...
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This chapter investigates the development of habeas review of state convictions and sentences in noncapital cases under 28 U.S.C. § 2254. The Habeas Corpus Act of 1867 expanded the availability of the writ in response to a major political and social crisis that created a serious risk of abuse of the government's power to detain. For state prisoners, Congress preserved traditional habeas review as authorized by the 1867 act, but enacted a new statute, 28 U.S.C. § 2254, that introduced revised rules of habeas procedure. Habeas became a crucial federal weapon in a new war of federalism during the Warren Court era. Justice William Rehnquist's view—that habeas should be limited to certain fundamental claims—did not prevail. The war of federalism that raged in the 1960s has ended, but the habeas law designed to fight it still stands, devoid of meaning.Less
This chapter investigates the development of habeas review of state convictions and sentences in noncapital cases under 28 U.S.C. § 2254. The Habeas Corpus Act of 1867 expanded the availability of the writ in response to a major political and social crisis that created a serious risk of abuse of the government's power to detain. For state prisoners, Congress preserved traditional habeas review as authorized by the 1867 act, but enacted a new statute, 28 U.S.C. § 2254, that introduced revised rules of habeas procedure. Habeas became a crucial federal weapon in a new war of federalism during the Warren Court era. Justice William Rehnquist's view—that habeas should be limited to certain fundamental claims—did not prevail. The war of federalism that raged in the 1960s has ended, but the habeas law designed to fight it still stands, devoid of meaning.
James M. Denham
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780813060491
- eISBN:
- 9780813050638
- Item type:
- chapter
- Publisher:
- University Press of Florida
- DOI:
- 10.5744/florida/9780813060491.003.0001
- Subject:
- History, American History: 20th Century
This chapter provides a brief history of the U.S. Southern District of Florida from its creation in 1847 to the creation of the U.S. Middle District of Florida in 1962, focusing primarily on ...
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This chapter provides a brief history of the U.S. Southern District of Florida from its creation in 1847 to the creation of the U.S. Middle District of Florida in 1962, focusing primarily on Florida’s dramatic population growth, and its legal and demographic features in the decades leading up to the creation of the new district in 1962. The expansion of federal jurisdiction of crime is covered in those years as is the role of senators in the appointment of federal judges. A brief survey of the Warren Court rulings and their context for federal jurisprudence in the district are included, as are the background of the judges and other court officials at the time the new district was created.Less
This chapter provides a brief history of the U.S. Southern District of Florida from its creation in 1847 to the creation of the U.S. Middle District of Florida in 1962, focusing primarily on Florida’s dramatic population growth, and its legal and demographic features in the decades leading up to the creation of the new district in 1962. The expansion of federal jurisdiction of crime is covered in those years as is the role of senators in the appointment of federal judges. A brief survey of the Warren Court rulings and their context for federal jurisprudence in the district are included, as are the background of the judges and other court officials at the time the new district was created.
- Published in print:
- 2007
- Published Online:
- March 2013
- ISBN:
- 9780226762838
- eISBN:
- 9780226762944
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226762944.003.0002
- Subject:
- Law, Criminal Law and Criminology
This chapter presents an interpretation of the Fourth Amendment in relation to government surveillance in the United States. It argues that when contemplating surveillance, government should be ...
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This chapter presents an interpretation of the Fourth Amendment in relation to government surveillance in the United States. It argues that when contemplating surveillance, government should be required to provide justification proportionate to the intrusiveness of the surveillance and to seek third-party authorization in all nonexigent circumstances. The chapter also shows that the post-Warren Court's application of the balancing analysis has attributed far too much weight to the government's interests and far too little to the individual's.Less
This chapter presents an interpretation of the Fourth Amendment in relation to government surveillance in the United States. It argues that when contemplating surveillance, government should be required to provide justification proportionate to the intrusiveness of the surveillance and to seek third-party authorization in all nonexigent circumstances. The chapter also shows that the post-Warren Court's application of the balancing analysis has attributed far too much weight to the government's interests and far too little to the individual's.
- Published in print:
- 2011
- Published Online:
- March 2013
- ISBN:
- 9780226436975
- eISBN:
- 9780226436968
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226436968.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This chapter explores the habeas remedy, as it originated and evolved in the English common law, and its subsequent development in the United States. The Great Writ of habeas corpus was a legal ...
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This chapter explores the habeas remedy, as it originated and evolved in the English common law, and its subsequent development in the United States. The Great Writ of habeas corpus was a legal procedure. Habeas became part of the law of the newly independent American states. The crisis of federalism that prompted the Warren Court to expand habeas review under Section 2254 no longer rages. The case of Lakhdar Boumediene, a man whose freedom was secured by the Great Writ of habeas corpus, is discussed. This case showed why the Great Writ has been considered with respect and admiration. On the other hand, the case of Ronald Graham illustrates how habeas corpus can turn into a massive waste of time, energy, and societal resources. It is suggested that Congress should amend the habeas statute to restrict the scope of habeas review of state noncapital criminal cases.Less
This chapter explores the habeas remedy, as it originated and evolved in the English common law, and its subsequent development in the United States. The Great Writ of habeas corpus was a legal procedure. Habeas became part of the law of the newly independent American states. The crisis of federalism that prompted the Warren Court to expand habeas review under Section 2254 no longer rages. The case of Lakhdar Boumediene, a man whose freedom was secured by the Great Writ of habeas corpus, is discussed. This case showed why the Great Writ has been considered with respect and admiration. On the other hand, the case of Ronald Graham illustrates how habeas corpus can turn into a massive waste of time, energy, and societal resources. It is suggested that Congress should amend the habeas statute to restrict the scope of habeas review of state noncapital criminal cases.
