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The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
Brannon P. Denning
In this brief comment on Ben Barton's "An Empirical Study of Supreme Court Justice Pre-Appointment Experience," I argue that appointing persons currently or formerly active in partisan politics would likely not benefit the Court as some have claimed and might affirmatively harm the Court as an institution.
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Brannon P. Denning
Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …