Tag: Supreme Court

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The Abortion Decision and Civic Literacy

Benjamin A. Kleinerman

I had the purely coincidental experience of teaching today both Roe and Casey in my Constitutional Experience course required of all Baylor students, so there are 250 of them in my class. That in combination with my browsing of Twitter (I’m on it too much now) convinces me that this decision illustrates well that we have a profound civic literacy problem. Many on Twitter and many in my class (apparently I haven’t taught them well) seemed to think that the decision would mean the immediate stoppage of all abortions nationwide. Some on Twitter worried that this decision would have an … Continue reading The Abortion Decision and Civic Literacy

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Court Reform and Judicial Self-Restraint

George Thomas

Like Jeff Tulis, I admire Adam White’s work. I appreciate both his skepticism of court-packing and his case for self-restraint. And I certainly appreciate Greg Weiner’s point that political actors should not push their constitutional power to the limit. That institutional restraint can be a virtue. Though, if anything, Congress often seems too restrained.  But two points are in order.  First, White is right to worry about whether court-packing and terms limits might cause the Court to be more politicized. In the current environment, he points to some important problems with 18 year term limits for the justices oriented around … Continue reading Court Reform and Judicial Self-Restraint

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The Press and the Rights Culture

Greg Weiner

This headline from Fox News on last week’s arguments in Carson v. Makin—the Supreme Court case deciding whether parochial schools can be excluded from a state program that provides tuition for other private schools—illustrates a problem with the way the media covers rights cases. The headline reads: “Justices offer support for religious rights in Maine education case.” The case for religious rights in Carson v. Makin is reasonable, perhaps strong. But whether religious rights are being violated in the first place is the whole question. The headline’s assertion of ”religious rights” presumes what is actually in dispute. Fox News is … Continue reading The Press and the Rights Culture

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Roe and Public Opinion

Greg Weiner

The Washington Post published a poll this morning showing that a significant majority of Americans support Roe v. Wade and do not think the Supreme Court should overturn it. That says something about the intrinsic tensions of rights talk at the Court. If broad majorities support access to abortion, there is no reason for the Supreme Court to intervene. Those majorities would be reflected in legislation. The truth, of course, is more complicated: Public opinion varies notably by state. More important, the stark choices the poll offers–which distill to whether abortion should be legal or illegal–do not pick up the … Continue reading Roe and Public Opinion

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August 23: Seeds of the Second Amendment

Greg Weiner

A seemingly mundane August 23 debate over who should govern state militias helps to illuminate the purpose of what later became the Second Amendment. The proposition on the table was to empower the national government to “make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-“ Elbridge Gerry immediately objected that enabling the national government to “arm” militias “would be regarded as an instrument of … Continue reading August 23: Seeds of the Second Amendment

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Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

Benjamin Slomski

Benjamin Slomski is Assistant Professor in Political Science at Ashland University. On August 3rd, the Centers for Disease Control and Prevention (CDC) issued a new eviction moratorium to last for sixty days in areas with high levels of COVID-19 infections. … Continue reading Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

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July 18 in the Constitutional Convention: Judicial Confirmations

Greg Weiner

The central issue on July 18 was the mode of appointing justices to the Supreme Court. The first motion put to the Convention would have assigned that authority to the Senate alone. Nathaniel Ghorum of Massachusetts thought the accountability of a legislative body would be too diffuse: No one member would feel responsible for a given appointment. He moved that the President appoint judges with the advice and consent of the Senate. The ensuing debate focused on how to obtain what Luther Martin called “a fit choice.” Some thought appointment by the Senate would avoid the concentrated power involved in … Continue reading July 18 in the Constitutional Convention: Judicial Confirmations

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Is Judicial Deference Principled?

George Thomas

Greg Weiner articulates a compelling argument for judicial deference—all things considered—to the elected branches of government. As he puts it: judges “can avoid decisions because someone else has already made them: elected officials. A reasonably consistent posture of deference to the elected branches . . . serves dual institutional purposes.”  I want to push the tension between principle and deference a bit more than Greg does. On its face, judicial deference offers a modest institutional role for judges. This understanding rests squarely on a view that decisions made by legislative majorities are preferable to unelected judges. It is a powerful take. And right, … Continue reading Is Judicial Deference Principled?

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Roe: Considering the Counterfactual

Greg Weiner

At The New York Times, Linda Greenhouse notices an under-appreciated aspect of the Supreme Court’s decision to take up a Mississippi case that it could use to overturn or restrict Roe. v. Wade. She writes that legislators in pro-life states, who have been multiplying restrictions on abortion to test Roe, will now be accountable for them: Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from … Continue reading Roe: Considering the Counterfactual