The Supply and Demand Sides of Judicial Policy-making (Or, Why Be So Positive about the Judicialization of Politics?)

A major reason that many people are intensely interested in who sits on the Supreme Court is that legal decisions can have great influence on the effectuation or frustration of political objectives. Clayton does not view the trend toward the judicialization of politics as necessarily antithetical to democratic values because Court decisions are within the mainstream of contemporary political values and electoral preferences

The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court’s treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency

“Advice and Consent” In the Appointments Clause: From Another Historical Perspective

This Essay, a response to Russell L. Weaver\u27s symposium contribution, Advice and Consent in Historical Perspective, first explores the Appointments Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate in responding to presidential nominations

All Relationships Dissipate Except This: The Attitude-Behavior Link on the Roberts Court

This Article identifies several reasons that may explain the observed relationship between the ideology of Supreme Court justices and their voting behavior once on the Supreme Court. Segal measures the ideology of justices using newspaper editorial in prominent papers as they appear between the President’s nomination and the justice’s confirmation by the Senate, while tracking the voting behavior of justices as reported by Segal and Cover. The Article concludes, contrary to belief based on psychology and other sciences, that this relationship between ideology and behavior will continue because of the importance of the Supreme Court in national affairs, and greater participation of interest groups in the political process, among others