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That Eminent Tribunal

That Eminent Tribunal: Judicial Supremacy and the Constitution

Christopher Wolfe editor
Series: New Forum Books
Copyright Date: 2004
Pages: 256
Stable URL: http://www.jstor.org/stable/j.ctt7ssxp
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    That Eminent Tribunal
    Book Description:

    The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process?

    That Eminent Tribunalbrings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions.

    Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself inPlanned Parenthood v. Caseyand similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible.

    The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.

    eISBN: 978-1-4008-2628-5
    Subjects: Law, Political Science
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Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-vi)
  3. Contributors (pp. vii-x)
  4. Introduction (pp. 1-9)
    Christopher Wolfe

    In the past generation, an abundance of scholarship has clearly described the profound transformation in the role of the Supreme Court (and the judiciary in general) in American public life. While the Court has always played a significant role in our political system, it has not always wielded the broad policymaking power it regularly exercises today.¹

    The scope and character of judicial power today is fundamentally inconsistent with the separation of powers embodied by the American founders in our Constitution. Current judicial excesses are not merely an aberration from our ordinary political arrangements, but raise the specter of establishing a...

  5. CHAPTER 1 Is the Constitution Whatever the Winners Say It Is? (pp. 10-19)
    Gerard V. Bradley

    It was the day beforeRoe v. Wade’s¹ twenty-fifth birthday, the day most of us first heard of Monica Lewinsky. But on January 21, 1998,twotales of sex and constitutional crisis were told in Washington, D.C. Here is the one you have heard less about.

    On that cold, clear morning Missouri senator John Ashcroft convened a hearing of his Subcommittee on the Constitution. The subject wasRoe. The occasion was noteworthy, in part, for the appearance of “Jane Roe”—Norma McCorvey—as a witnessagainstthe holding that the Supreme Court entered in her favor a quarter century before....

  6. CHAPTER 2 Nationhood and Judicial Supremacy (pp. 20-36)
    Robert F. Nagel

    Even critics ofPlanned Parenthood v. Caseymust admit that the opinion of the Court has an earnest, almost yearning quality.¹ The justices manifestlywantthe American people to understand weighty and difficult matters. They discuss at length not only the immediate legal basis of their reaffirmation that the Constitution protects the right to abortion but also the deeper institutional and political bases of the rule of law and, indeed, of “the country’s understanding of itself.” Accordingly, beginning with the first sentence—“Liberty finds no refuge in a jurisprudence of doubt”—the language of the opinion is both portentous and...

  7. CHAPTER 3 “Casey at the Bat”—Taking Another Swing at Planned Parenthood v. Casey (pp. 37-58)
    Michael Zuckert

    Not only do the authors of the two previous chapters converge in a consideration of the three-person joint opinion inPlanned Parenthood vs. Casey, but they emphatically agree that “Mighty Casey has Struck Out.” Beyond that they differ in their understanding of what theCaseycourt was trying to do and to some degree in exactly where the Court went wrong.¹

    Gerard Bradley believesCaseyis built on a deep commitment to a particular substantive right, what he elsewhere calls amegaright, in the name of which the Court has stepped forward as a new sort of “superior being” to...

  8. CHAPTER 4 Antijural Jurisprudence: The Vices of the Judges Enter a New Stage (pp. 59-84)
    Hadley Arkes

    About a dozen years ago, the Supreme Court declined to overturn the laws on sodomy in the separate states. That is to say, the Court decided to leave this contentious matter in the hands of legislators in the separate states. The day after that decision was announced, inBowers v. Hardwick, I found myself at a party with an old friend, a seasoned lawyer in Washington, who reacted to that decision with a certain disbelief, and with the same spirit put this question to me: “Do you really want,” he said, “politicians making decisions on matters of this kind?” I...

  9. CHAPTER 5 Judicial Power and the Withering of Civil Society (pp. 85-96)
    George W. Liebmann

    This essay is about the effect of judicial interference on subordinate and mediating institutions, and what should be done about it. I hope, however, to avoid both the usual lamentations and the usual remedies.

    Thus I shall not emphasize the courts’ establishment clause jurisprudence, the flaws in which are well recognized, nor the recent speeches before the American Law Institute by Justice Margaret Marshall of the Supreme Judicial Court of Massachusetts¹ and President Gerhard Casper of Stanford.² Nor shall I examine the various remedial efforts, usually in the form of narrowly conceived statutes and constitutional amendments that have been proposed...

  10. CHAPTER 6 The Academy, the Courts, and the Culture of Rationalism (pp. 97-117)
    Steven D. Smith

    Law professors naturally find it pleasant to suppose that we are shaping the law—that judges and especially justices are looking to the academy for guidance as they decide cases and devise doctrines. But is this self-conception realistic, or merely a gratifying delusion?

    In this essay I want to consider three aspects of that question. First, I will briefly discuss some of the most obvious ways in which law professors might exercise what we could call “result-specific” influence over judges, and then speculate about the efficacy—or, as seems more likely, the inefficacy—of these modes of influence. Then I...

  11. CHAPTER 7 Judicial Moral Expertise and Real-World Constraints on Judicial Moral Reasoning (pp. 118-140)
    Jack Wade Nowlin

    Do federal judges have a special power of moral insight compared to voters and legislators? Perhaps, our first question ought rather to be: Why would it matter? What difference does the question of comparative judicial moral expertise make to our perennial debates about judicial power? The answer tothatquestion will become clear once we embark self-consciously on a critical project one might calltaking judicial power seriously.¹ What does this project entail? In brief, it involves the task of attempting to determine the proper constitutional scope of the federal judicial power by testing various conceptions of the judicial role...

  12. CHAPTER 8 Toward a More Balanced History of the Supreme Court (pp. 141-158)
    Michael W. McConnell

    While many specialists in the study of the American constitutional system recognize that each of the branches of government—and even the individual citizen—has a legitimate role in the interpretation of our foundational document, it is all too common to hear some version of the idea that “the Constitution is what the Supreme Court says it is.” In recent years, this inflated view of the authority of the High Court has crept into the Court’s own discussion of its position in American life. InPlanned Parenthood v. Casey, for example, the controlling joint opinion asserted that the belief of...

  13. CHAPTER 9 Judicial Review and Republican Government (pp. 159-180)
    Jeremy Waldron

    In this country we pride ourselves on having a republican form of government. By that I do not mean government by the likes of Herbert Hoover, Richard Nixon, or Ronald Reagan, of course; I mean “republican” in the sense used in Article 4 of the U.S. Constitution: “The United States shall guarantee to every State in this Union a Republican form of Government.”¹

    The wordrepublicanrefers to a form of government in which public affairs are governedaspublic affairs by the members of the public—the citizens—acting together as statesmen. A good definition of “republican government” should...

  14. CHAPTER 10 The Casey Five versus the Federalism Five: Supreme Legislator or Prudent Umpire? (pp. 181-198)
    Keith E. Whittington

    Constitutional law professors have been very upset lately with the U.S. Supreme Court. Actually, this has been true for a few years now. One encounters anguished and bitter words in the places where such faculty gather. The words are only somewhat less heated in print. “Arrogant” and “imperious” are common adjectives, and the nature and meaning of judicial supremacy and judicial activism are again on the academic agenda.

    Planned Parenthood v. Caseyis not at the center of that discussion.¹ The 1992Caseydecision has certainly generated a critical response, as several contributions to this volume evidence, but these have...

  15. CHAPTER 11 The Rehnquist Court and “Conservative Judicial Activism” (pp. 199-224)
    Christopher Wolfe

    A large majority of complaints about “judicial imperialism” in the last generation or two have come from political conservatives, especially in reaction to the Warren Court’s avalanche of revolutionary legal decisions and then afterwards to similar decisions of the Burger Court, most notablyRoe v. Wade. Perhaps the strongest statement of misgivings came from social conservatives in an issue ofFirst Thingsentitled “The End of Democracy?” Some of the contributors to that issue even wondered whether judicial intervention on key social issues like abortion and homosexuality raised questions as to the very legitimacy of American government.¹

    More recently, however,...

  16. Index (pp. 225-238)
  17. Back Matter (pp. 239-239)