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Search Results for: judicial supremacy

Constitution

The Case against Judicial Supremacy

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Debates over judicial review and constitutional interpretation only stand to benefit from deeper reflection on the type of political community the Constitution established. The Political Constitution invites us to take the word republic, and its vision of self-government, seriously.

How Legislatures Can Combat the Problem of Judicial Supremacy and Protect Human Rights

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Though Legislated Rights is primarily written for legal philosophers, it bears important lessons for all who work to secure human rights in law. It challenges conventional views about the supremacy of courts in specifying and vindicating rights, arguing that legislatures can best accomplish this task.
Public Discourse

The Unsoundness of Judicial Supremacy

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Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.
Public Discourse

Constitutional Conservatism Rejects Judicial Supremacy

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Conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority.
Public Discourse

Gingrich, Desegregation, and Judicial Supremacy

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Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.
Public Discourse

Elitism and Judicial Supremacy

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Faced with an increasingly democratic political system, American elites have turned to the courts as an alternate means of enacting their political and constitutional agenda.
Public Discourse

Constitutional Disorder in the Era of Judicial Supremacy: What Can be Done Now

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If we want to lower the stakes of winner-take-all Supreme Court battles, we must search for justices who reject the notions of judicial activism and judicial supremacy. The second in a two-part series.
Public Discourse

Constitutional Disorder in the Era of Judicial Supremacy: The Founders’ Understanding of the Court

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Judicial supremacy is inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law. The upcoming confirmation hearings for Sonia Sotomayor should force citizens to reconsider the place of the Court in our political life. The first in a two-part series.
supreme court, law, justice

Free Exercise and Conservative Judicial Overreach

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During the Covid-19 pandemic, some judicial conservatives have eschewed the virtue of constraint in favor of an ahistorical and excessively libertarian notion of the free exercise of religion. To achieve the correct balance between liberty and order, and to prevent activist judges granting religious exemptions in areas outside of their expertise, conservatives should return to a more realistic view of the limited role of the courts in the regulation of religious practices.

The Virtues of Judicial Self-Restraint

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To faithfully apply the original public meaning of liberty protected by the Constitution—that is to say, to be a faithful originalist—one must acknowledge that both a contractarian view of individual liberty and a Whig view of the liberty to make laws were held by the founding generation.
Public Discourse

“Conservative” Judicial Activism for Gay Marriage: With Amici Like These, Who Needs Enemies?

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A group of distinguished conservative public servants, policy makers, and political operatives has signed an amicus brief saying the US Constitution requires the states to redefine marriage. They argue that this is the truly conservative position—but it takes quite a bit of logical contortion to accept their argument.
Public Discourse

Abortion and the Courts: Judicial Nominations Are Imperfect but Matter

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Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees—a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.
Public Discourse

The Unprecedented, Extraordinary, Anti-democratic, Activist Power of Judicial Review

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President Obama’s recent quips about “judicial activism” do not amount to arguments. They are shallow sloganeering.
Public Discourse

Originalism and Judicial Restraint

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Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.
Books

Isolation Bookshelf: Great Cases in Constitutional Law

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Chief Justice John Roberts complained five years ago, in the Obergefell marriage case, of some of his colleagues’ “extravagant conception of judicial supremacy.” To understand how such a conception has come to grip the judicial mind, studies of some of the Supreme Court’s most notable cases make for instructive reading.
Public Discourse

The Ninth Circuit’s Desperate Targeting of Justice Kennedy

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This week’s decision in the Prop 8 case is a desperate appeal to Justice Kennedy, and the latest assault of judicial supremacy.
United Nations

How the United Nations Declaration Failed

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The primordial failing of the UN Declaration’s proponents was that they drank too deeply from the well of postwar optimism. While they were rightly horrified by the brutality of the Second World War, they rebuilt neither with a tragic sense nor with due attentiveness to human limitations. Instead, they rebuilt with comic ambitions.
flag, constitution

Calvinball Constitutionalism

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Adrian Vermeule’s new book, an attempt to rescue American constitutional law by recurring to the “classical legal tradition,” is undone by the author’s unreasonable attack on originalism and his inattention to the Constitution and its history.
Supreme Court building

Supreme Court Nominations: A Primer to President Biden

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Public Discourse has hosted arguments about the Court since the publication’s inception. Here, from our archives, are some essays which remain timely, and which might provide some needed perspective on the role of the Court, originalism, and the role of morality and natural law in the Court.
Boy waving French flag

What the French Can Teach Americans About the Electoral College

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Pitting as it does two different conceptions of popular sovereignty against each other, the debate over the Electoral College is a proxy for a more fundamental debate over what kind of regime should govern America. The history of French republicanism teaches that the closer Americans come to changing the way they elect their president, the closer they come to regime change.
Wedding Cake

Suing for Peace in the Wedding Vendor Wars

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Andrew Koppelman surely is correct that a same-sex couple must find it humiliating and embarrassing to be turned away from a wedding vendor. He is also right that the costs of using public law to remedy such indignities are significant, especially for the conscientious owners whose livelihoods are at stake. So, what to do? What we need is an institution that is capable of resolving these fraught disputes on a case-by-case basis. Fortunately, the common law provides such institutions.

Voting at Public Discourse

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Americans are just a month away from choosing our next president. Voting is a great responsibility, and we at Public Discourse seek to inform readers with a variety of viewpoints and arguments all coming from thinkers who share our basic moral commitments.

Why the U.S. Commission on Unalienable Rights Should Not Ignore Abortion

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Despite many excellent elements, the Commission’s first report falls short where it matters most. The right to life is the most fundamental right, the one on which all authentic human rights depend. The commission may revise the initial draft of the report following a public comment period. If the foremost experts on human rights in the United States could not agree that international human rights law affords children in the womb any protections at all, how can Secretary of State Mike Pompeo and his team be expected to contradict them in American diplomacy?
Supreme Court

Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition

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For centuries, judges, lawyers, and legislators agreed that the object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted. Bostock is the most recent example of the Supreme Court violating this foundational principle of the rule of law.
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