AP Government: Due Process & Roe V. Wade
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Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2003 Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power Dennis J. Hutchinson Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Dennis J. Hutchinson, "Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power," 74 University of Colorado Law Review 1409 (2003). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. TWO CHEERS FOR JUDICIAL RESTRAINT: JUSTICE WHITE AND THE ROLE OF THE SUPREME COURT DENNIS J. HUTCHINSON* The death of a Supreme Court Justice prompts an account- ing of his legacy. Although Byron R. White was both widely admired and deeply reviled during his thirty-one-year career on the Supreme Court of the United States, his death almost a year ago inspired a remarkable reconciliation among many of his critics, and many sounded an identical theme: Justice White was a model of judicial restraint-the judge who knew his place in the constitutional scheme of things, a jurist who fa- cilitated, and was reluctant to override, the policy judgments made by democratically accountable branches of government. The editorial page of the Washington Post, a frequent critic during his lifetime, made peace post-mortem and celebrated his vision of judicial restraint.' Stuart Taylor, another frequent critic, celebrated White as the "last true believer in judicial re- straint."2 Judge David M. -
Equal Protection and Moral Circumstance: Accounting for Constitutional Basics
Fordham Law Review Volume 59 Issue 4 Article 2 1991 Equal Protection and Moral Circumstance: Accounting for Constitutional Basics Donald E. Lively Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Donald E. Lively, Equal Protection and Moral Circumstance: Accounting for Constitutional Basics, 59 Fordham L. Rev. 485 (1991). Available at: https://ir.lawnet.fordham.edu/flr/vol59/iss4/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. EQUAL PROTECTION AND MORAL CIRCUMSTANCE: ACCOUNTING FOR CONSTITUTIONAL BASICS DONALD E. LIVELY* INTRODUCTION 8 INCE its ratification in 1868, the equal protection guarantee' has been notable for its underachievement. The fourteenth amendment was adopted shortly after the Civil War to secure the citizenship and basic rights of those individuals whose humanity the Constitution's origi- nal framers bartered away.2 The amendment also empowered Congress to enforce its provisions through appropriate legislation.' In its first test after ratification,4 however, the fourteenth amendment's potential for challenging official discrimination was significantly cur- tailed. The Supreme Court effectively trimmed the privileges and immu- nities clause to the point that it has never operated as a meaningful check upon exercises of state power.' Although initially determining that the * Professor, College of Law, University of Toledo; A.B., University of California, Berkeley; M.S., Northwestern University; J.D., University of California, Los Angeles. -
A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia" (1994). Faculty Publications. 990. https://scholarship.law.wm.edu/facpubs/990 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ARTICLES A TALE OF TWO TEXTUALISTS: A CRITICAL COMPARISON OF JUSTICES BLACK AND SCALIA MICHAEL J. GERHARDT* The idea that Justices Hugo Black and Antonin Scalia have anything in common jurisprudentially is counterintuitive. Justice Black is associated with the progressive social and economic legislation symbolized by the New Deal and with judicial activism in protecting the poor and disen franchised.1 He is beloved by many liberals as a champion of individual rights, especially freedom of speech and of the press. In contrast, Justice Scalia is revered by conservatives as a true believer-combating the rising tide of liberalism, big government, and judicial activism-set on restoring traditional notions of federalism and judicial restraint.2 Any effort to liken these two Justices makes both liberals and conservatives recoil. * Professor of Law, Marshall-Wythe School of Law, The College of William and Mary. B.A. Yale University; M.Sc. London School of Economics; J.D. University of Chicago. I am grateful for the encouragement and helpful comments on earlier drafts I received from Marc Arkin, Erwin Chemerinsky, George Cochran, Neal Devins, Jill Fisch, Tracy Higgins, Michael Herz, Sandy Levinson, Chip Lupu, Tracey Maclin, John McGinnis, Peter Shane, Bill Treanor, Steve Wermiel, and Ron Wright. -
Duke Law School
Neil S. Siegel David W. Ichel Professor of Law Professor of Political Science Director, DC Summer Institute on Law & Policy Duke University School of Law 210 Science Drive Durham, NC 27708 [email protected] (919) 613-7157 EDUCATION Boalt Hall School of Law, University of California, Berkeley: J.D., 2001 Graduated 1st in class; Boalt Hall Fellowship (full tuition, fees); Senior Articles Editor, California Law Review; Jurisprudence Awards in Federal Courts, U.S. Supreme Court Seminar, Criminal Law, Constitutional Law & Public Choice Theory, Law & Economics, and 18th Century Constitutional Design University of California, Berkeley: Ph.D. (Jurisprudence & Social Policy), 2001 Dissertation: Intransitivities Protect Minorities: Interpreting Madison’s Theory of the Extended Republic; Field Examinations in U.S. Constitutional Theory and Law & Economics; Berkeley Graduate Fellowship (full tuition, fees, stipend); Kadish Center for Morality, Law & Public Affairs Fellow; John M. Olin Law & Economics Fellowship Duke University: M.A. (Economics), 1995 Full-tuition scholarship; Spengler Fellow Duke University: B.A., summa cum laude (Economics, Political Science), 1994 Angier B. Duke Memorial Scholarship (full tuition); Phi Beta Kappa; Graduation with Distinction in Economics, Political Science; Prize for Best Senior Thesis in Economics EXPERIENCE Duke University School of Law Durham, N.C. David W. Ichel Professor of Law and Professor of Political Science July 2013 – present Director, DC Summer Institute on Law and Policy July 2013 – present Co-Director, Program in Public Law July 2008 – June 2018 Professor of Law and Political Science July 2009 – June 2013 Associate Professor of Law and Political Science July 2007 – June 2009 Assistant Professor of Law and Political Science July 2004 – June 2007 American Constitution Society Washington, D.C. -
Stare Decisis and Judicial Restraint Lewis F
Washington and Lee Law Review Volume 47 | Issue 2 Article 2 Spring 3-1-1990 Stare Decisis And Judicial Restraint Lewis F. Powell, Jr. Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Jurisprudence Commons Recommended Citation Lewis F. Powell, Jr., Stare Decisis And Judicial Restraint, 47 Wash. & Lee L. Rev. 281 (1990), https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. WASHINGTON AND LEE LAW REVIEW Volume 47 Spring 1990 Number 2 STARE DECISIS AND JUDICIAL RESTRAINT REmAS oF LEWIS F. POWELL, JR.* AssocATE JUsTicE (RETIRED) SUPREME COURT OF THE UNITED STATES It is a privilege to give the inaugural Leslie H. Arps Lecture. I knew Les fairly well as a young lawyer with Root, Clark, Buckner and Ballantine in the 1930's. Les became an associate for that firm in 1931 upon his graduation from the Harvard Law School. I took an LL.M. degree at the Law School in 1932 and had a number of friends among the third year students, including two who joined Les at Root, Clark on graduation- Everett Willis and Frank Dewey. Everett and Frank shared an apartment with Les in 1934, and when Frank married my sister Eleanor in Richmond, Virginia, in August 1934, Les and Everett were ushers at the wedding. -
"Slow Dance on the Killing Ground": the Willie Francis Case Revisited
DePaul Law Review Volume 32 Issue 1 Fall 1982 Article 2 "Slow Dance on the Killing Ground": The Willie Francis Case Revisited Arthur S. Miller Jeffrey H. Bowman Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Arthur S. Miller & Jeffrey H. Bowman, "Slow Dance on the Killing Ground": The Willie Francis Case Revisited, 32 DePaul L. Rev. 1 (1982) Available at: https://via.library.depaul.edu/law-review/vol32/iss1/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. "SLOW DANCE ON THE KILLING GROUND":t THE WILLIE FRANCIS CASE REVISITED tt Arthur S. Miller* and Jeffrey H. Bowman** The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. FELIX FRANKFURTER*** The time is 1946. The place: rural Louisiana. A slim black teenager named Willie Francis was nervous. Understandably so. The State of Louisiana was getting ready to kill him by causing a current of electricity to pass through his shackled body. Strapped in a portable electric chair, a hood was placed over his head, and the electric chair attendant threw the switch, saying in a harsh voice "Goodbye, Willie." The chair didn't work properly; the port- able generator failed to provide enough voltage. Electricity passed through Willie's body, but not enough to kill him. -
Reading Our Written Constitution
READING OUR WRITTEN CONSTITUTION JEFFERSON A. HOLT “[W]ords are the tools with which we work, the material . out of which the Constitution was written. Everything depends on our under- standing of them.”1 INTRODUCTION The Constitution of the United States of America contains only 4,543 words.2 Its twenty-seven Amendments add an addi- tional 3,048 words.3 Together, these 7,591 words comprise our Nation’s great charter.4 Although relatively brief,5 the Constitu- tion6 is expansive in scope. Indeed, its broad terms are not un- like those often found in simple trust agreements.7 While such language allows for needed flexibility, the lack of specificity in With gratitude and appreciation to Professor Patrick Wiseman of the Georgia State University College of Law, without whom this article would not have been possible. 1Garson Kanin, Trips to Felix, in FELIX FRANKFURTER: A TRIBUTE 34, 41–42 (Wallace Mendelson ed., 1964). 2Sol Bloom, Constitution of the United States: Questions & Answers, U.S. NAT’L ARCHIVES & RECS. ADMIN., http://www.archives.gov/exhibits/charters/constitution _q_and_a.html (last visited Feb. 20, 2015). 3See U.S. CONST. amends. I–XXVII. 4See Stephen Gardbaum, The Myth and the Reality of American Constitutional Excep- tionalism, 107 MICH. L. REV. 391, 399 (2008). 5By way of comparison, “[t]he average state constitution is more than three times as long as the federal Constitution. Only a few states have fewer than 10,000 words in their constitutions.” DAVID R. BERMAN, STATE AND LOCAL POLITICS 77 (9th ed. 2000). Similarly, the median book length—about 64,000 words—is signifi- cantly longer than the Constitution. -
Review of “Judge Learned Hand and the Role of the Federal Judiciary,” by Kathryn Griffith
Washington University Law Review Volume 1975 Issue 2 January 1975 Review of “Judge Learned Hand and the Role of the Federal Judiciary,” By Kathryn Griffith G. Michael Fenner Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Judges Commons Recommended Citation G. Michael Fenner, Review of “Judge Learned Hand and the Role of the Federal Judiciary,” By Kathryn Griffith, 1975 WASH. U. L. Q. 518 (1975). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1975/iss2/12 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. 518 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 1975:514 just over eight hundred pages, a prodigious undertaking in any event. The book's primary market will undoubtedly be among practicing lawyers, and its effectiveness can really only be tested by practitioner use of the book. If the success of the Illinois volume is any indication, the federal version is likely to meet a warm reception. Nevertheless, the prudent prospective purchaser might be well advised to await publi- cation of a second edition, which would incorporate the new FRE as enacted by Congress. Based upon the history of the Illinois volume, a second edition might be expected within the next year. But, for the attorney who is not bothered by the necessity to use the promised pocket part supplementation, the amount of investment required for this volume seems well worth the potential reward. -
What Is Originalism? It Is a Bedrock of Constitutional
Originalism, in a Nutshell By Emily C. Cumberland* hat is originalism? It is a bedrock of constitutional construction, but if original intent were considered it would interpretation for federalists, but many have only be the intent of the sovereign parties to the Constitution, Wfound it diffi cult to defi ne comprehensively what not the framers personally.14 Another criticism of the original it means. Originalism is, broadly speaking, a catchall term intent theory is that it requires projecting the drafters’ personal for methods of constitutional interpretation principled on outlooks onto a future unknown and unimaginable to them.15 fi delity to the Constitution.1 It represents not one school of Since these arguments against original intent were put forth, and thought but a spectrum of theories about how the Constitution perhaps in an eff ort to salvage a workable originalism, there has should be interpreted.2 There is no solid consensus as to been a gradual shift among originalists towards interpretation when originalism became a formally-recognized method of on the basis of original meaning.16 constitutional interpretation, although at least one account Phase II: Original Meaning credits Paul Brest with coining the term in “Th e Misconceived Quest for Original Understanding” in 1980.3 Another account The shift from original intent to original meaning claims then-Attorney General Edwin Meese III fi rst publicized was basically a shift from a focus on the framers’ subjective originalism in a speech before the American Bar Association in intentions to a focus on the text’s objective meaning during 17 1985.4 Regardless of its exact debut, originalism has become the framers’ time. -
Same-Sex Marriage and Backlash
MWP – 2016/04 Max Weber Programme Same-Sex Marriage and Backlash: Constitutionalism through the Lens of Consensus and Conflict AuthorReva B. Author Siegel and Author Author European University Institute Max Weber Programme Same-Sex Marriage and Backlash: Constitutionalism through the Lens of Consensus and Conflict Reva B. Siegel Max Weber Lecture No. 2016/04 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1830-7736 © Reva B. Siegel, 2016 Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Abstract In the decades before the United States Supreme Court recognized the right of same-sex couples to marry in Obergefell v. Hodges, Americans disdained, denounced, and debated same-sex marriage. When state courts recognized the right of same-sex couples to marry, opponents passed laws and state constitutional amendments that defined marriage as the union of a man and a woman. This fierce conflict provoked argument about the capacity of courts to defend minority rights. Critics argued that judicial judgments shutting down politics were counterproductive and provoked a backlash that exacerbated political polarization. Conversation about the backlash ranged widely from academics and advocates to judges. These “realist” accounts of judicial review depicted courts as majoritarian institutions whose authority is tied to public consensus. -
The Role of Textualism in the Progressive Toolbox
TRACZ (DO NOT DELETE) 4/27/2021 11:15 PM WORDS AND THEIR MEANINGS: THE ROLE OF TEXTUALISM IN THE PROGRESSIVE TOOLBOX BY ELIOT T. TRACZ* I.INTRODUCTION ................................................................................................... 353 II.TEXTUALISM ........................................................................................................ 355 A. Textualism ............................................................................................. 355 i. Legislative intent ......................................................................... 355 ii. Textualism ...................................................................................... 358 B. Words and Their Meanings ............................................................ 359 C. Canons of Construction- What happens when the text is vague? ..................................................................................................... 361 D. Some Criticisms ................................................................................... 364 III.TEXTUALISM AS BIG “C” OR LITTLE “C” CONSERVATIVE ............ 365 IV.TEXTUALISM AS A PROGRESSIVE TOOL ............................................... 369 A. Past Examples of Textualism Helping a Progressive Agenda 370 B. Future Areas Where Textualism Can Support Progressive 371 i. Commonsense Gun Reform ..................................................... 371 ii. Qualified Immunity ..................................................................... 374 V. CONCLUSION ....................................................................................................... -
Judicial Activism"
The Origin and Current Meanings of "JudicialActivism" Keenan D. Kmiect TABLE OF CONTENTS Introduction ............................................................................................1442 I. Early History of the Term "Judicial Activism" ..............................1444 A. In Search of the Earliest Use .....................................................1444 B. First Recorded Use: Arthur Schlesinger in Fortune M agazine .....................................................................1445 C. Early Usage of "Judicial Activism" .........................................1450 D. Early Scholarly Examination of Judicial Activism ...................1452 E. First Judicial Use of "Judicial Activism": Judge Joseph C. Hutcheson, Jr ..................................................1455 F. Other Noteworthy Discussions of "Judicial Activism" in Judicial O pinions ......................................................................1459 II. Definitions of Judicial Activism ......................................................1463 A. Striking Down Arguably Constitutional Actions of O ther B ranches .........................................................................1463 B . Ignoring Precedent ....................................................................1466 1. Vertical versus Horizontal Precedent ....................................1466 2. Constitutional versus Statutory versus Common Law Precedents ..................................................................1469 C . Judicial Legislation ...................................................................1471