Judicial Engagement, New Originalism, and the Fortieth Anniversary of \u3ci\u3eGovernment by Judiciary\u3c/i\u3e

Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history. Judicial Engagement can only be justified by adopting a “living Constitution” approach to constitutional interpretation

Is the Roberts Court Really a Court?

When facing a question that the law does not clearly answer, courts are generally obligated to resolve legal disputes by examining, interpreting, and applying prior positive law such as text and precedent. This Article argues that three cases decided by the Roberts Court – Gonzales v. Carhart, District of Columbia v. Heller, and Citizens United v. Federal Election Commission – exemplify the Supreme Court’s propensity for disregarding prior positive law when deciding cases. The Author contends that the Roberts Court, quite possibly like all the Supreme Courts before it, is not a “court” at all because it does not take prior law seriously and does not transparently provide true justifications for its conclusions

5 U.S. (1 Cranch) 137, 175

Part of Symposium: The Sound of Legal Thunder: The Chaotic Consequences Of Crushing Constitutional Butterflies

What Elena Kagan Could Have & Should Have Said (& Still Have Been Confirmed)

During her confirmation hearings, Justice Kagan backed away from numerous critical comments she had previously made about the nomination process. No one knows why she changed her mind but it is likely that the shift resulted more from a political calculation than a change of heart about the nature of the process. This Commentary suggests that Justice Kagan could have testified consistently with her previously expressed views and still have been confirmed

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. Thus, Congress should pass or amend a statute permanently implementing a Supreme Court comprised of an even number of Republicans and Democrats. To reach a decision and avoid deadlock on such a Court, at least one Justice would need to cross ideological lines, resulting in more positively received decisions, especially in politically charged cases. This article concludes that an evenly balanced Court would uphold the supremacy and uniformity of federal law, be more favorably viewed as a Court of law rather than a politicized institution, and would enable well-thought-out and rational procedure—rather than death, serious illness, or politically timed retirements—to drive the judicial confirmation process

Lost in Space: Laurence Tribe\u27s Invisible Constitution

For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution. Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution. Unfortunately, where the book is transparent, Professor Tribe doesn\u27t cover new ground in suggesting that much of our constitutional doctrine cannot be gleaned from the text of the Constitution. Many scholars have emphasized our unwritten Constitution and Professor Tribe\u27s substitution of the word invisible for unwritten does not advance the debate. Where Professor Tribe tries to break away from conventional analysis, he employs unhelpful space metaphors, obscure drawings and new labels for constitutional analysis that are opaque and difficult to understand, even for the sophisticated reader. Although Professor Tribe is no doubt correct that our Constitution stands for much more than is in its text, his new book fails to illuminate the implications of that reality or to help us discern the contours of what he calls the Invisible Constitution

What Elena Kagan Could Have and Should Have Said (and Still Have Been Confirmed)

Written in the form of a fictional memo by Elena Kagan to the President of the U.S., this commentary offers a proposed opening statement for the confirmation hearing of the Supreme Court Justice nominee. The proposal includes a consideration of Justice Kagan’s previous comments concerning confirmation hearings and a disclosure of her views on specific constitutional questions. The commentary also addresses the tension between judicial activism and restraint, acknowledging the application of both the law and personal judgment. Finally, the hypothetical statement suggests the educative benefit of transparency as opposed to judicial silence concerning substantive issues raised during the confirmation process