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The State As Witness: Windsor, Shelby County, And Judicial Distrust Of The Legislative Record, Bertrall L. Ross

Bertrall L Ross

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where

the state produces adequate evidence to support its action, the Court sometimes invalidates the …