THE RELATIVE AUTONOMY OF THE UNITED STATES SUPREME COURT

The thesis of this article is that in performing the function of judicial review, the Supreme Court of the United States of America acts as a relatively autonomous institution

On The Freedom To Associate or Not To Associate with Others

In casual conversation, it is commonly asserted that there is, or should be, a right to associate or not to associate with whom one chooses. Societies, however, frequently induce associations people do not want and deter those they do. This article addresses the types of situations that give rise to associational issues and the considerations relevant to their resolution. It does not attempt to develop a general theory of free association because, given the unresolvable value disputes underlying all associational issues, I am skeptical about the possibility of developing such a general theory. Unpacking how differing associational issues are resolved in practice within and among societies should, however, shed some light on those values. Part A outlines the types of situations in which associational issues arise. How associational issues are resolved greatly depends on whether a more individualistic or collective perspective is brought to bear. Part B develops this point in general through a discussion of both Locke and Aristotle. Part C illustrates the point through a brief excursion into the institution of marriage. Part D analyzes in more detail how the process plays out regarding conflicts among society\u27s members. Part E then analyzes the process when society itself is a party

On Brown v. Board of Education\u27s 50th Anniversary: To Integrate or Separate Is Not the Question

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in the early 1990s the Court began to relieve previously segregated districts of any further obligation to desegregate. The result has been a substantial resegregation in fact of the public schools over the past decade and a half. In addition, beginning in the mid-1970s the Court refused to intervene in cases challenging the exclusionary zoning tactics of suburban communities to which many whites have fled to avoid integration; and in cases challenging states’ substantial reliance on local funding of public schools, the impact of which has been to leave the poorer, disproportionately minority school districts unable to provide an education of comparable quality to the richer, largely white suburbs. The paper argues that the United States remains a highly racialized and racist society with gross disparities and inequalities based on race, that focusing on adequate funding for segregated schools rather than on integration would not likely have made a substantial difference in the current status of the black community, and that through its decisions the Supreme Court has sanctioned the institutionalization of a system that is now “separate and unequal.” The paper then argues that both an integrationist and a more separatist approach are consistent in theory with what a non-racist society entails, but that under either approach in the context of an inegalitarian and hierarchical society the black community will likely continue to bear disproportionately the hardships of American life; and that the achievement of racial justice, while not reducible to a class struggle, requires an inter-racial and inter-ethnic struggle for racial and social justice of all who suffer from the institutionalized inequality of this society

On the Freedom to Associate or Not to Associate with Others

This article discusses the freedom to associate or not to associate with others. Associational issues are pervasive in the law, and arise on both an individual and a societal level. Within societies one party may want to have an association with another who doesn’t want the association, or parties may want to have an association that others find objectionable or may want not to have an association that others favor. In all of these situations society as a whole must decide whether to empower one party to impose an unwanted relationship on others, and whether to prohibit associations that parties want or impel associations that parties don’t want. Similar issues arise among societies, where parties may resort to international law to resolve associational conflicts or in the absence thereof will have to work out associational conflicts among themselves. The thesis of the paper is that there is no general moral or legal principle for resolving such associational issues. Rather their resolution depends on historical and social context, and ultimately on societies’ ever evolving values. In particular, associational issues will affected by the extent to which a society’s values are more individualistic or collective. By way of illustrating the point the article discusses the factors that might come in to play in a variety of associational contexts, including marriage, race relations, emigration and immigration, and others

Is Capital Punishment Immoral Even If It Does Deter Murder?

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment is absolutely immoral, since in a sufficiently just society I think it can be justified, at least in some instances. Rather the point is, first, that the consequentialist argument countenances the execution of those who due to diminished mental capacity are not sufficiently blameworthy to warrant the death penalty, in particular children and the mentally impaired; and, second, that since social injustices contribute to murder, particularly among the impoverished and disadvantaged, that substantial societal reform must be undertaken before capital punishment could be considered justifiable. At that point it is an open question whether capital punishment would even be needed as a deterrent to murder