Braver and Elinson on A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present @JoshuaBraver1 @WisconsinLaw @NIU_Law

Joshua Braver, University of Wisconsin Law School, and Gregory Elinson, Northern Illinois University College of Law, are publishing A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present in the Uniersity of Arizona Law Review. Here is the abstract.

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark progressive rulings in cases like Brown v. Board of Education and Roe v. Wade were not, in and of themselves, meaningful contributions to progressive causes. This Article evaluates these claims and concludes that judicial review’s progressive critics are wrong on both counts. Revisiting the key eras and cases the progressive critique of judicial review is based on—including Reconstruction, Lochner v. New York, Brown, and Roe—we find little evidence that the Court has been consistently less progressive than the elected branches. We focus on postmaterial political issues that broadly code as part of a broader “culture war,” such as race and sex equality. As to Reconstruction, given that the Republican Party had largely turned away from the project of expending the necessary resources to promote Black equality, progressive critics of judicial review greatly overstate the Court’s contribution to Reconstruction’s demise. In the Lochner era, politicians in both political parties harbored racist views and promoted racist public policy, so the Court’s anti-government ideological commitments ultimately redounded to the benefit of Black Americans. Moving toward the present, we argue that Brown should be celebrated for desegregating the former “border” states and making the Civil Rights Act of 1964 possible. Roe, for its part, established a permissive national abortion regime that went well beyond what was possible to achieve through politics then. On balance, we conclude, a world without judicial review might well have been meaningfully less progressive. Why have judicial elites usually been more progressive than majorities in Congress or presidential administrations on culture-war issues? During Reconstruction, legal elites were largely undifferentiated from their counterparts serving elsewhere in the national government. By the Progressive Era, however, legal elites had become relatively more skeptical of state power compared to their political brethren, a disposition that sometimes furthered progressive ends. After the New Deal, we credit educational polarization, which has tended to make the elite bar, and thus the pool of actual and potential judges and justices, comparatively more open to progressive claims. We observe, however, that beginning in the 1990s, through effort and mobilization—perhaps most notably with the establishment of the Federalist Society—conservatives have offset the exclusionary effects of the legal profession’s liberal leanings on the judiciary.

Download the article from SSRN at the link.

Tyler on Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic @profamandatyler @BerkeleyLaw @VirginiaLawRev

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic in volume 109 of the Virginia Law Review. Here is the abstract.

Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution. Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. In several recent cases, however, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersect with the exercise of religion, but also in the area of property rights and separation of powers. The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. This article explores the role of the Constitution and judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic, while surveying debates on either side of the competing visions that emerge. Then, after criticizing the Court’s inconsistent approach to its role during the pandemic and acknowledging that many may find fault in its merits assessments of certain cases, the article contends that the application in some recent cases of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development. The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.” But, as will also be shown, we still have a considerable way to go.

Download the article from SSRN at the link.

Aimonetti on Colonial Virginia: The Intellectual Incubator of Judicial Review @JustinAimonetti @UVALaw

Justin W. Aimonetti, University of Virginia School of Law, has published Colonial Virginia: The Intellectual Incubator of Judicial Review at 106 Virginia Law Review 765 (2020). Here is the abstract.

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.

Download the article from SSRN at the link.

Interpretative Rules and the Canadian Charter

Benjamin J. Oliphant, University of Toronto, is publishing Taking Purposes Seriously: The Purposive Scope and Textual Bounds of Interpretation Under the Canadian Charter of Rights and Freedoms in a slightly altered form in the University of Toronto Law Journal. Here is the abstract.

In order for judicial review under the constitution to be compatible (sic) the rule of law, there must be some tangible constraints on judicial interpretation. The author puts forward an account of interpretation under the Charter of Rights and Freedoms that views both the text and purposes underlying it as meaningful constraints on the range of meanings available to interpreters. In particular, the author seeks to demonstrate that ‘purposivism’ as a method of interpretation can, and frequently has in the Canadian context, operated to narrow the scope of vague and under-determinate constitutional guarantees. The author criticizes more expansive forms of purposivism, which seek not only to inform the meaning of the words included in the Charter, but also to give those purposes said to animate the guarantees independent legal force. This point is illustrated with particular reference to the Supreme Court of Canada’s right to vote jurisprudence. The author concludes that these more aggressive approaches to purposivism risk elevating judicially-ascertained purposes to the same legal status as the language enacted into law, and undermine the defence frequently offered in support of the legitimacy of judicial review under the Charter – that it stems from the deliberate choices of the people. 

Download the draft of the article from SSRN at the link.

Judicial Review In the Ancien Regime

Francesco Di Donato, University Parthenope of Napoli, has published La hiérarchie des normes dans l’ordre juridique, social et institutionnel de l’Ancien Régime (The Hierarchy of Norms in the Juridical, Social and Institutional Order of the Ancient Regime), at 21 Revus: Journal of Constitutional Theory and Philosophy of law 237 (2013). Here are the abstracts (French and English).  

 Le contrôle de constitutionnalité, dont la magistrature parlementaire de l’Ancien Régime revendiquait le plein droit, n’était pas fondé uniquement sur les lois fondamentales du royaume, mais sur l’ensemble des principes (les maximes) tirés de la Tradition. Cette dernière était composée en premier lieu par le droit divin et le droit naturel, c’est-à-dire par des systèmes juridiques qui nécessitaient, tous les deux, une interprétation juridictionnelle ‘sapientiale’. Cette activité interprétative était ‘révélatrice’ d’un corpus de valeurs métaphysiques à laquelle seule la Scientia Juris des magistrats pouvait puiser. Mais dans la sphère de la Tradition juridique rentraient aussi le dépôt légal, c’est-à-dire l’ensemble de toutes les lois, même des lois ainsi dites ordinaires, c’est-à-dire celles qui avaient été produites par la simple manifestation de volonté souveraine d’un roi prédécesseur car tel avait été son plaisir (moderne formulation du brocarde de droit romain: quidquid principi placuit legis habet vigorem). Ainsi la juridiction parlementaire donnait lieu à un jugement de constitutionnalité qui était normalement exercé de manière très flexible par le corps de la magistrature, dépendant des circonstances et des intérêts politiques momentanés des situations juridiques qu’elle voulait protéger. La hiérarchie des normes était ainsi un formidable instrument de protection de cet ordre juridique dont les legum doctores se sentaient les tuteurs. Elle était, donc, directement liée au gouvernement politique des juges.
The judicial review, to which the Ancient Regime’s parliamentary judiciary claimed full and unique right, was not only founded on the fundamental laws of the French kingdom, but also on a set of principles (les maximes) drawn from the Tradition. This Tradition was first of all composed of the divine law and the natural law, that is of legal systems both of which needed a judicial sapiencial interpretation. This interpretative activity provided revealing insight into the body of metaphysical values that only the magistrates’ Scientia Juris was able to draw on. However, the legal Tradition also included the dépôt légal, i.e., the totality of all laws, including, so to say, ordinary laws, that is to say statutes created as a result of the simple manifestation of the sovereign will of an earlier King car tel avait été son plaisir (modern formulation of the Roman expression: quidquid principi placuit legis habet vigorem). Thus, parliamentary jurisdiction used to give rise to judicial review that was usually exercised very flexibly by the Judiciary, i.e. depending on the circumstances and momentary political interests of the legal situations it wanted to protect. Thus, the hierarchy of norms was a remarkable instrument for protecting this legal order whose tutors were, according to their own opinion, legum doctores. And so the hierarchy of norms was directly connected with the political government of judges.

Download the article from SSRN at the link.