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Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross
Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross
Bertrall L Ross
Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.
What explains these shifts? An easy explanation is that the Supreme Court …
Against Constitutional Mainstreaming, Bertrall L. Ross
Against Constitutional Mainstreaming, Bertrall L. Ross
Bertrall L Ross
Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming—an interpretive practice that molds statutes toward the Court’s own preferred values and away from values favored by legislative majorities.
In addition to providing a novel descriptive framework for what the …