"Affirmative Action" - Reverse Discrimination or Distributive Justice? The Role of the US Supreme Court

Extensive political science research reveals that the decisions of the US Supreme Court are deeply political. And both advocates and critics of judicial elections concede that partisan elections are a democratic method of judicial selection. Does the value of democratic representation mean that US Supreme Court Justices should be selected through partisan elections? I argue not. Partisan judicial elections are actually far poorer institutional mechanisms for capturing the judgment of the people on legal matters than has been recognized. The role of parties in structuring a campaign distorts the deliberative environment surrounding judicial elections, creating significant barriers to voters expressing a judgment on matters of legal meaning. The kind of distortion is best understood through reference to aprocessualcriterion of deliberative democracy, which provides a fitting normative template to ground theoretical inquiry into the reason-giving possibilities of existing democratic institutions and practices. Hence, answering why the US Supreme Court should not be elected on democratic grounds also reveals new insights about the role of parties in sustaining (or subverting) deliberative democratic ideals.

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THE ROLE OF THE PERSONAL FACTOR IN THE ACTIVITIES OF THE US SUPREME COURT (BASED ON DOCUMENTS OF 1940–1960s)

University proceedings Volga region Social sciences ◽

10.21685/2072-3016-2019-1-2 ◽

2019 ◽

Author(s):

E. A. Ageeva ◽

Keyword(s):

Supreme Court ◽

Personal Factor ◽

The Us ◽

Us Supreme Court

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Terrorism, Emergency Powers, and the Role of the US Supreme Court: An Interview with Neal K. Katyal

Ratio Juris ◽

10.1111/j.1467-9337.2007.00370.x ◽

2007 ◽

Vol 20 (4) ◽

pp. 443-455

Author(s):

NEAL K. KATYAL ◽

GIORGIO BONGIOVANNI ◽

CHIARA VALENTINI

Keyword(s):

Supreme Court ◽

Emergency Powers ◽

The Us ◽

Us Supreme Court

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3. Political Power, Authority, and the State

Politics ◽

10.1093/hepl/9780198787983.003.0003 ◽

2018 ◽

Author(s):

Peter Ferdinand ◽

Robert Garner ◽

Stephanie Lawson

Keyword(s):

Supreme Court ◽

Max Weber ◽

The State ◽

Three Dimensions ◽

Good Thing ◽

The Us ◽

Us Supreme Court ◽

Methodological Problems ◽

German Sociologist

This chapter examines power and authority, two central concepts in politics, in relation to the state. It first defines power in the context of authority, taking into account the distinction between them by citing the role of the US Supreme Court as an example. It then considers the classic threefold typology of authority proposed by German sociologist Max Weber, namely: traditional authority, charismatic authority, and legal–rational authority. It also addresses some conceptual questions about power; for example, whether power is the same as force, whether it must be exercised deliberately, whether it is a good thing, or whether we can eliminate it. The chapter goes on to explore the methodological problems inherent in the measurement of power, particularly in relation to the theories of the state such as Marxism, pluralism, elitism, and feminism. Finally, it describes Stephen Lukes' three dimensions of power.

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The US Supreme Court and Affirmative Action: The Cases of Bakke, Weber and Fullilove

Journal of American Studies ◽

10.1017/s0021875800008896 ◽

1981 ◽

Vol 15 (3) ◽

pp. 341-356 ◽

Cited By ~ 1

Author(s):

R. A. Maidment

Keyword(s):

Affirmative Action ◽

Supreme Court ◽

United States Supreme Court ◽

The United States ◽

University Of California ◽

Ronald Dworkin ◽

Press Corps ◽

The Us ◽

Us Supreme Court ◽

The University

If reports are to be believed, “waiting for Bakke” was the main preoccupation of the Washington press corps in the Spring of 1978. The case had been argued before the United States Supreme Court in a blaze of publicity, and, while the nine judges were considering the arguments, there was no shortage of commentators to “advise” the Court. As one of these “advisers,” Ronald Dworkin, noted “No lawsuit has ever been more widely watched or more thoroughly debated in the national and international press before the Court's decision.” Thus when Mr. Justice Powell began to read the opinion of the Court in Regents of the University of California v. Bakke, a “hush enveloped the courtroom.” The audience was hushed but expectant because it believed that it was about to witness a judgement of momentous historical importance. The pre-decision coverage suggested that the Court was either going to give or deny its constitutional imprimatur to the principle of affirmative action or preferential treatment. But unfortunately the judgement did not live up to its advance publicity. It did not definitively decide the issue, in fact it decided remarkably little. True, Allan Bakke did win and the University of California lost. However, the fate of affirmative action programmes was not resolved, and indeed despite the Supreme Court's pronouncements in two further cases, United Steelworkers of America v. Weber and Fullilove v. Klutznick, continues to hang in the constitutional balance.

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Democratic Law and the Erosion of Common Law

10.1093/oso/9780190084486.003.0003 ◽

2021 ◽

pp. 65-89

Author(s):

Seana Valentine Shiffrin

Keyword(s):

Supreme Court ◽

Common Law ◽

Good Faith ◽

Narrow Focus ◽

The Us ◽

Us Supreme Court ◽

Democratic Character ◽

The Common ◽

Customary Practices

This chapter explores the democratic character of the common law by examining the implied contractual duty of good faith and its dismissive treatment by the US Supreme Court in Northwest v. Ginsberg, a 2014 preemption decision. The decision was mistaken because it failed to recognize law’s morally indispensable role of publicly articulating and interpreting our shared moral commitments, treating law instead as a mere means of resolving disputes. The chapter also celebrates the democratic character of common law, which, although articulated by judges, responds to reasons and problems emerging from the citizenry and attends to moral expectations embodied in customary practices. The chapter underscores the importance of common law (and the doctrine of good faith) in publicly articulating reasons and drawing on the underlying values that law serves, democratic functions that are lost when litigation is replaced by private arbitration and overlooked by a narrow focus on elections.

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