Online research in philosophy

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire drawn reasoning, reflecting the judges' political and social views. For a survey of Supreme Court Cases on the Bill of Rights see M. Konvitz, Fundamental Liberties of a Free People . The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. See article on George W. Bush's nominations. Since judges hold office for life, a President's nominations may make a long term difference to the interpretation of the constitution.

Consider a country where American-style judicial review is applied to primary legislation, yet its constitutional documents are enacted haphazardly and in the British-style, using procedures applied to regular legislation. For nearly half a century, this country has acted as if it had a sovereign legislature, yet its highest court decided in 1995 that its most basic norm is that of a limited legislature constrained by a formal Constitution, the existence of which comes as a surprise to constitutional scholars and citizens alike. How then was the country’s Supreme Court able to revolutionize its constitutional system in one tangled decision? The fascinating answer is that the Court succeeded by relying both on legislative enactment and more heavily on comparative constitutional experience to suggest that principles of democracy, the rule of law, and respect for individual rights require a formal Constitution. This is the story of Israel’s version of the U.S. Marbury v. Madison decision. The story, detailed in this article, presents three conflicting yet complementary traditions: monism in the British-style; dualism in the American-style; and foundationalism in the German-style. It is a story of how and whether legislative self-entrenchment may create a higher norm. It reflects a dualist approach, despite the lack of a distinct legislative track for the formation of constitutional law. It reveals aspirations for law higher than even the Constitution in the form of foundationalism. This article’s narrative of Israel’s constitutional story throws new light on recent American debates regarding the constitutionality of legislative entrenchment; the exploitation of comparative constitutional law to decide one’s own constitutional dilemmas; and the legitimacy of judicial constitution-making.

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadians have played out an American-style debate about judicial activism at an accelerated pace. Throughout the 1980s, a number of commentators on the left expressed concerns that the Court was interpreting the Charter in a manner that would thwart legislative attempts to assist the disadvantaged and strike down progressive social legislation as occurred in the United States in the Lochner era: During the next decade, commentators on the right duplicated American criticisms of the Warren Court by arguing that the Supreme Court was exercising too much power by inventing rights not found in the Constitution, and by enforcing the rights of minorities and criminals against the wishes of the majority and their elected representatives. Despite their different politics, these critics of judicial activism share much. They all believe that judges can read their personal preferences into the Charter; they are all skeptical about the rights asserted in Charter litigation; and they all have faith in majoritarian forms of democracy and legislative supremacy.In this essay, I will argue that the term judicial activism is ultimately not a helpful way to structure debate about judicial review under the Charter or other modern bills of rights that allow rights as interpreted by the Court to be limited and overridden by ordinary legislation. The label judicial activism obscures more than it illuminates and allows commentators to criticize the Court and the Charter without really explaining their reasons for doing so. It hints at, if not judicial impropriety, at least judicial overreaching, while hiding often controversial assumptions made by the critics of judicial activism about judging, rights and democracy. Such assumptions need to be revealed and unpacked for all the world to see.

Few constitutional scholars would dispute the proposition that the Supreme Court and the president each possess the legal authority to exercise meaningful constitutional review. This idea is uncontroversial, in part, because constitutional review makes pragmatic sense in a nation that stresses systematic, structural restraints on government power. It is also uncontroversial because the Framers clearly planted the seeds of departmental constitutional review throughout the Founding documents. Despite their strong support for this sort of constitutional review, however, the Framers failed to articulate the manner in which each "department" (or "branch") should exercise its interpretive powers in relation to other branches. Rather than identify which branch's interpretations should receive the most constitutional deference, the Framers appeared to have permitted some degree of interpretive chaos, in which multiple branches could exercise the power of constitutional review, but no branch was formally or *informally* bound by the interpretations of others. To decipher the way in which the Framers believed that each department's interpretive powers would interrelate, this Note reexamines the indicia of constitutional review present within many Founding documents. It then argues that even though the Framers intended to establish a departmental interpretive system, they *also* intended to create an interpretive system that approximates the modern paradigm of deductive judicial supremacy. Though scholars often view judicial supremacy and departmentalism on mutually exclusive grounds, this Note argues that departmentalism that is filtered through an admittedly *soft* deductive judicial supremacy model best characterizes the Framers' conception of constitutional interpretation. In other words, not only are departmentalism and judicial supremacy intellectually compatible, but the Framers specifically intended to create a system that built upon both. In advocating an originalist defense of judicial supremacy, this Note aims to succeed where previous scholars have failed -- though, of course, it does so by advocating a softer form of judicial supremacy than many scholars ordinarily defend. To help explain its deductive model, in which Supreme Court decisions provide the most appropriate -- though not the only -- barometer of statutes' constitutionality, this Note also proposes a unique interpretive framework that approximates how the Framers believed a multi-layered system of heirarchical constitutional review should realistically apply.

The decision of the Supreme Court of Canada in Canadian Western Bank v. Alberta (2007) was quickly hailed as the most important federalism ruling in 20 years. The decision has already been the subject of considerable academic commentary, but that academic commentary has been focussed, almost exclusively, on the doctrinal implications of the decision; there has been very little discussion of the underlying theory of federalism described in the decision. This paper will fill that gap. I will argue that, in Canadian Western Bank, the Supreme Court clearly outlines the theory of judicial review that has been animating its decision-making in division of powers cases, at times explicitly, but mostly implicitly, for at least the last ten years. Under this theory, the Supreme Court encourages the political branches to take the lead in defining the scope of the division of powers; the Supreme Court limits itself to facilitating an intergovernmental dialogue about the scope of the division of powers, and managing the conflict that results where the political branches fail to reach agreement.

One of the most basic principles of American constitutionalism is that Congress cannot statutorily overturn the Supreme Court's constitutional decisions. Although it can reverse statutory decisions, Congress is not able to supersede the Court's constitutional rules because it cannot change the source of law being interpreted - the Constitution - outside of the amendment process of Article V. Given the problems with judicial supremacy for many constitutional theorists, there has been a noticeable gap in the literature on the ways in which Congress can, in fact, successfully challenge the Court's reading of the Constitution. Few scholars provide any account of how other governmental institutions or even the constitutional culture at large can directly confront and overturn a given constitutional rule. This Article seeks to address this gap in the scholarship by highlighting three areas - three lacunae - where Congress has the ability to displace constitutional rules by statute. Congress has the power to overturn constitutional decisions in three specific areas within the federalism realm: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause. This Article will demonstrate that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions tells us something important about our Constitution and our federalism. The existence of these three anomalies suggests that adaptability and accommodation often take constitutional precedence over theoretical purity, especially when issues of federalism are involved.

In recent years, the Supreme Court's 2001 decision in Saucier v. Katz has come under increasing criticism. Critics-including academics, litigants, judges, and Supreme Court justices - have offered four principal criticisms. First, they argue that Saucier's ordering requirement often results in advisory opinions that follow insufficient argument and that result in bad constitutional rulings. Second, they contend that the decision unnecessarily exacerbates already-existing concerns of judicial economy. Third, they assert that the decision frequently results in unreviewable decisions of constitutional law. Finally, they argue that because litigants have other ways of seeking to vindicate their constitutional rights, Saucier's ordering requirement is unnecessary. This Article responds to these criticisms in two ways. First, it places Saucier in its historical and doctrinal context. Historically, the Supreme Court has regularly reached constitutional questions the resolution of which were unnecessary to the outcome of the case. Doctrinally, the Supreme Court has often allowed, if not required, the resolution of unnecessary constitutional questions. Second, this Article responds seriatim to these criticisms and argues that none of them justify departing from Saucier's ordering rule. With each of the four criticisms rebutted or undermined, the original justification for Saucier still stands - the ordering requirement is necessary to ensure the continued evolution and clarification of constitutional law. The Article concludes by asserting that the Supreme Court should reaffirm Saucier when it revisits the issue next term.

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-rersolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role which it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court’s functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the large part, failed to engage with the meaning of the term “judicial activism” and examine the manner in which it is determined. This paper contends that a recent model to measure judicial activism proposed by Cohn and Kremnitzer can fill this void. It applies the model to three major cases of the Indian Supreme Court, to demonstrate how it can enable us to arrive at a sophisticated understanding of when decisions are activist; and how decisions may be activist by some parameters and restrained by others. In particular, it illustrates that commentary on the Court needs to evolve and engage with judicial decision-making in a far more rigorous fashion. Through its qualitative analysis, this paper suggests that the Cohn-Kremnitzer model can play an important role in moving beyond the current impasse in the debates on judicial activism in the Indian Supreme Court.