Judges Commons^™

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …