Online research in philosophy

The Supreme Court's 2008 decision extending the constitutional right of habeas corpus to non-citizen detainees held at Guantanamo Bay is a remarkable decision on many levels. Although the Supreme Court had previously held to a mostly sovereignty based, territorial methodology for determining whether U.S. constitutional rights would be extended extraterritorially, latent in the Court's jurisprudence had long been a strain of the "personal law" principle. That personal law principle was the analytical basis for reorientation of U.S. conflicts law away from territoriality to interest analysis. In Boumediene v. Bush, the Court was required to confront the competing territoriality and personal law strands of its jurisprudence. Its attempt to reconcile the two into a "functional" test mimics the same struggle that U.S. courts have had for the last four decades trying to accommodate those competing concerns on conflict of laws. Thus, this article argues that the Supreme Court's decision is best understood as a conflict-of-laws decision.

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.

With the decision in Strate v. A-1 Contractors, the United States Supreme Court overstepped the bounds of the government-to-government relationship between Tribal Nations and the United States. The Strate decision follows a recent trend in the Supreme Court's decisions or judicial activism in terms of federal Indian law, and also signals a return to former anti-Indian underpinnings in its decisions of the early 1900s. This article will examine: Part I, the legal background of the Strate v. A-1 Contractors decision; Part II, the Strate v. A-1 Contractors by the United States Supreme Court; Part III, the inherent sovereignty of Tribal Nations and the conflicts with the Strate decision; and Part IV, the pragmatic future impact of the Strate decision on the exercise of tribal jurisdiction.

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.

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 their original article on dialogue theory in 1997, Peter Hogg and Allison Bushell concluded that decisions of the Supreme Court of Canada striking down legislation under the Canadian Charter of Rights and Freedoms usually leave room for a legislative response, and usually receive one. The Charter, they concluded, establishes a weak form of judicial review compared to the US Bill of Rights, and resolves the countermajoritarian difficulty. Dialogue theory has been very influential in Canada, but the core of the theory - the existence of legislative sequels - is much less significant than has been supposed. Dialogue theory pays inadequate attention to the substance of legislative responses, and ignores the extent to which those responses are influenced, if not dictated, by the Court's decisions. This is no concern to dialogue theorists, because as Hogg, Thornton, and Wright make clear in their 2007 article updating the original dialogue article, dialogue theory assumes that the judiciary is the authoritative interpreter of the Charter. In other words, the theory is based on the premise that disagreement with judicial interpretation of the Charter is illegitimate. With this premise in place, however, meaningful dialogue between courts and legislatures is impossible. The main role of dialogue theory is to downplay judicial power, and in this way rationalize a form of top-down constitutionalism.

The way in which the Supreme Court of Canada deals with politically controversial cases suggests that the Court is self-defining of its role in constitutional litigation, and more broadly in the constitutional order. Recent litigation involving same-sex marriage and the public health care system demonstrates the problem. In the context of same-sex marriage, the Court had no choice but to hear a reference from the government of Canada seeking advice, yet the Court purported to exercise a discretionary power not to answer the most important question before it: whether or not limiting marriage to opposite-sex couples infringed the Canadian Charter of Rights and Freedoms. In the context of the public health care system, the Court had a choice, and it chose to hear an appeal on the constitutionality of Quebec legislation designed to protect the public monopoly on heath care. Having elected to hear that case, however, the Court failed to reach a majority decision on the Charter question, and the failure appears to have been deliberate. Having deprecated the "passive virtues" and rejected a political questions doctrine, the Supreme Court of Canada nevertheless exercises considerable discretion in dealing with politically controversial cases. It is concerned, among other things, with preserving its political capital in the context of a constitutional order that has become increasingly dependent on its decisions.

While overshadowed by rulings concerning the rights of detainees, executive power and judicial review in the "war on terror," the Supreme Court recently issued three surprisingly significant decisions on international law. These cases show a realistic reaffirmation by the Supreme Court of international law's central importance to U.S. jurisprudence, the rejection of a post-war conservative belittlement as well as an apparent disdain for it, and a prudent determination of Congressional intent and judicial precedent in global commerce. While dealing with quite technical issues of the federal courts' subject-matter jurisdiction in alien torts, sovereign immunity and antitrust, these three decisions suggest a return to pragmatism by the Supreme Court. Taken together they provide a sensible balancing of foreign policy concerns within the context of the separation of powers and foreign relations. They also serve as a counterweight to the political degradation of international law that started with the Reagan-Bush era and continued through the current Bush administration.

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.

Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.