scholarly journals Explaining the Selection and Rejection of Harriet Miers: George W. Bush, Political Symbolism, and the Highpoint of Conservatism

2008 ◽  
Vol 29 ◽  
pp. 253-270 ◽  
Author(s):  
Kevin J. McMahon
Keyword(s):  
Supreme Court ◽  
The Other ◽  
White House ◽  
Chief Justice ◽  
The Supreme Court ◽  
Political Symbolism ◽  
The Right ◽  
President Bush ◽  
Selection Of

Following the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist in the summer of 2005, President George W. Bush appeared to be in alliance with conservatives in his desire to fill the two vacancies with strong ideologues who would push the Supreme Court to the right. However, after pleasing conservatives with his selection of John Roberts for one of the vacancies, President Bush angered many of his ideological brethren by choosing White House counsel Harriet Miers for the other. This article considers why the president decided on Miers and why her selection upset so many conservatives. It concludes by suggesting that Miers’s forced withdrawal represented a highpoint in the conservative effort to transform the Court.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

Belhaj v. Straw & Rahmatullah (NO 1) v. Ministry of Defence (U.K. Sup. Ct.)

2017 ◽  
Vol 56 (5) ◽  
pp. 951-1040
Author(s):  
Natasha Simonsen
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Armed Conflicts ◽  
The Other ◽  
State Immunity ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Right ◽  
The Way

In Belhaj & Rahmatullah (No 1) v. Straw & Ors, the Supreme Court of the United Kingdom cleared the way for claims against British forces for complicity in acts of rendition and torture abroad to proceed to trial. The judgment in Belhaj was one of a trio of important judgments handed down on January 17, 2017, the other two concerning the doctrine of Crown act of state and the right to detain in noninternational armed conflicts. This Note considers only Belhaj, in which the Supreme Court rejected the arguments that the doctrines of state immunity and/or foreign act of state precluded U.K. courts from hearing the claims.

Selection of Justices and Judges

2020 ◽  
pp. 141-146
Author(s):  
Danny M. Adkison ◽  
Lisa McNair Palmer
Keyword(s):  
Supreme Court ◽  
The State ◽  
Chief Justice ◽  
The Supreme Court ◽  
Selection Of

This chapter highlights Article VII-B of the Oklahoma constitution, which concerns the selection of justices and judges. Section 1 states that “the provisions of this Article shall govern the selection and tenure of all Justices of the Supreme Court and Judges of the Court of Criminal Appeals of the State of Oklahoma.” Section 2 sets forth the procedure for a judicial officer to run for unlimited additional terms of office. The provision in Section 3 creates a Judicial Nominating Commission, which possesses jurisdiction to determine whether the nominees for judicial office meet applicable requirements, and to determine the existence of vacancies on the commission. In the event of a judicial vacancy, Section 4 instructs the Judicial Nominating Commission to submit the names of three nominees to the governor and the chief justice of the supreme court. Section 5 sets forth the specific parameters of judicial terms of office. In an attempt to prohibit political partiality by judges, Section 6 prohibits judges from making contributions to, or holding office in, a political entity. Lastly, Section 7 concerns the effective date of Article VII-B.

scholarly journals L'égalité selon la Cour suprême

2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Other ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The One ◽  
The Right

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

scholarly journals L'arbitre de griefs, instrument efficace de contrôle des abus de pouvoirs de l'employeur ?

2005 ◽  
Vol 19 (1) ◽  
pp. 105-115
Author(s):  
Jean-Louis Dubé
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Collective Agreement ◽  
Supreme Court Of Canada ◽  
Collective Agreements ◽  
Grievance Arbitration ◽  
Chief Justice ◽  
Arbitration Process ◽  
The Supreme Court ◽  
The One

In theory, recourse to the grievance arbitration would appear to be an efficient means of controlling the abuse of powers (i.e. violations of the collective agreement) by the employer. Indeed, experience has borne out the truth of this affirmation. Mainly due to the management rights principle however, there still remain several important lacunae in this regard. On the one hand, by invoking the so-called management rights principle as a favorite means for circumscribing the arbitrator's jurisdiction, the Supreme Court of Canada has greatly diminished the efficacy of the arbitration process. This has occured primarily through the quashing of arbitration decisions either on the basis of error of law or else by limiting the arbitrator's discretion in disciplinary cases. On the other hand, it would be just as harmful to the efficiency of the arbitration process if arbitrators themselves were to abuse the management rights principle in interpreting and applying collective agreements. In general, arbitrators have proved to be highly conscious of this problem. By the same token, arbitrators have been faced with the problem of whether or not to discipline acts of insubordination even though employees may have been provoked by an abuse of authority on the part of the employer. All in all, arbitrators, by their attitude, appear to manifest a desire of ensuring the efficient functioning of the arbitration process, without acting to the detriment of management rights. In this regard, the Supreme Court of Canada, with the notable exception of Chief Justice Laskin, would seem to be fighting a rear-guard action by continually emphasizing management rights.

scholarly journals A Sámi Community Wins Case against the Swedish State in the Supreme Court

2020 ◽  
Vol 11 (0) ◽  
pp. 19
Author(s):  
Øyvind Ravna
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Land Management ◽  
The Other ◽  
Customary Law ◽  
Fishing Rights ◽  
The Supreme Court ◽  
Management Area ◽  
The Right ◽  
Hunting And Fishing

On 23 January 2020, the Supreme Court of Sweden delivered an historic verdict in favour of the Girjas sameby in a lawsuit against the Swedish State over a long-standing dispute over the right to administer hunting and fishing rights in the Girjas land management area. Rooted in Sámi customary law, ILO Convention 169 and the UN Declaration of Indigenous Peoples, the verdict is a milestone in the development of Sámi law in Sweden. It may also have an impact on the other Nordic countries, in particular Norway.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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