Judicial Engagement


Exceptionalism by Michael B Mukasey

When Enforcing the Constitution Means Rejecting Precedent: A Reply to Greg Weiner

Evan Bernick December 30, 2016

Part bull, part man, and nourished by Athenian blood, the minotaur has been the stuff of nightmares for millennia. It is to be doubted, however, that anyone has put it to more terrifying use than the French political scientist Bertrand de Jouvenel , who deployed the minotaur as a symbol of a particularly menacing kind of government power—arbitrary power, unconstrained by principles of law and hostile to individual rights.

In a recent essay at Liberty & Law, Greg Weiner trots out Jouvenel’s minotaur to frighten readers about the supposed menace of “a jurisprudence of ‘wrong the day that it was decided’”—that is, a judicial approach whereby judges reconsider and reject decisions that never did reflect an accurate understanding of the law. This judicial approach has been recommended by both Randy Barnett and Mark Tushnet, albeit on the basis of fundamentally differing understandings of the Constitution and of judicial duty. Warns Weiner, “the judicial Minotaur does not differ from other variants of the all-consuming creature . . . having been forged for one hand to brandish, [judicial power] will ultimately be wielded by another.” [Read More]



Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction

Evan Bernick December 19, 2016

Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases? [Read More]


New York City Skyline
Photo Credit: Photo by Lesekreis via Wikimedia Commons. (link)

The Future Of The GOP: Cities And Judicial Engagement

Shoshana Weissmann November 03, 2016

In 2016, the Republican Party turned down a road that many did not see coming, and came to embody something far from its highest potential.

It is important to understand what led the GOP to the problems it faces today. That includes talk radio, politicians who promise more than they can deliver, ineffective messaging, and not investing in cities.

All of these deserve serious consideration and thoughtful solutions. The former two have been discussed more thoroughly elsewhere. The latter two I believe to be part of one bigger problem to which the Institute for Justice provides instructive solutions.

For years, the Institute for Justice has proven itself to be a model for those who want to effectively defend freedom and the limits on constitutional government. The GOP purports to strive for the same. [Read More]


Supreme Court Columns

Size Doesn’t Matter: Why Shrinking the Supreme Court Won’t Promote Constitutionally Limited Government

Evan Bernick October 26, 2016

The Supreme Court needs to be cut down to size. So argues Professor Michael Stokes Paulsen in an article on National Review Online, responding to Senator John McCain’s recent statement that Senate Republicans might be justified in refusing to confirm any judge nominated to the Court by a President Hillary Clinton. According to Paulsen, McCain “does not go far enough.” In light of what he regards as the Court’s “judicial activism,” as well as the political vitriol associated with Court appointments, Paulsen calls for congressional measures that would prevent the confirmation of any judges nominated to the Court by any president until the Court is shrunk to six members. This, he contends, will lead to less activism and make the appointment process less controversial. [Read More]


Supreme Court columns

Scrutiny for Me, But Not For Thee? New York Times Columnist Praises Courts for “Calling out Legislators” in Abortion and Voting Rights Cases

Evan Bernick August 25, 2016

It is not often that a progressive columnist offers full-throated praise for judicial decisions to invalidate regulations that are said to be necessary to protect public health and safety. And yet the New York Times recently presented its readers with that rare spectacle.

In a column for the Times, longtime (now semi-retired) Supreme Court reporter Linda Greenhouse praises the Supreme Court for “calling out legislators” in Whole Woman’s Health v. Hellerstedt, a decision in which the Court carefully scrutinized and ultimately struck down Texas legislation requiring physicians who provide abortions to have active admitting privileges at a hospital within 30 miles of the location where the abortions were provided and mandating that any facility at which abortions were provided satisfy the state’s standards for “ambulatory surgical centers.” Greenhouse also praises a decision by the Fourth U.S. Circuit Court of Appeals in a case involving a controversial North Carolina election reform law that wrought a number of changes in voting mechanisms and procedures, including a voter ID requirement and restrictions on early voting, same-day registration, out-of-precinct voting, and preregistration. Writing for a unanimous three-judge panel in North Carolina State Conference of the NAACP v. McCrory, Judge Diana Motz parsed the evidence in a voluminous record and determined that the “new provisions target[ed] African Americans with almost surgical precision”; that they “constitute[d] inapt remedies for the problems assertedly justifying them”; and that they “impose[d] cures for problems that did not exist.” The Fourth Circuit panel concluded that the law had been enacted “with discriminatory intent”—to impede “a particular race’s access to the franchise because its members vote for a particular party”—and remanded the case to the district court with instructions to enjoin the challenged provisions. [Read More]