scholarly journals Deference is Dead (Long Live Chevron)

2020 ◽  
Author(s):  
Nathan Richardson
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Regulatory Policy ◽  
Standard Account ◽  
Short Term ◽  
The Supreme Court ◽  
Central Case ◽  
Long Time ◽  
Circuit Courts ◽  
Change Health Care

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important. This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside as a series of exclusions have narrowed its scope, and has been hollowed out from the inside as Justices have become ever more willing to find clear meaning in statutes, thereby denying deference to agencies. In recent years, agencies have won only a handful of statutory interpretation cases, and none in more than four years. Only once since 2015 has deference been outcome-determinative. At the Supreme Court level (though not, for now, in the circuit courts), deference is dead. The once-crystal Chevron has turned to mud. As a result, however, it is less likely to be formally overturned than widely believed—critics of deference and of administrative power on the Court would gain little. Instead, Chevron’s future is likely to be one of further decline, at least in the short term. This has implications for major policy areas like climate change, health care, and immigration where regulatory policy is necessary and challenges are likely to reach the Court.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

scholarly journals Evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto (II)

2011 ◽  
Vol 60 (5) ◽  
Author(s):  
Fabio Persano
Keyword(s):  
United States ◽  
Supreme Court ◽  
Single Case ◽  
The United States ◽  
Planned Parenthood ◽  
Abortion Debate ◽  
The Supreme Court ◽  
Long Time ◽  
The Right ◽  
Roe V Wade

Negli Stati Uniti il dibattito sull’aborto è sempre un tema molto caldo. Questo saggio, diviso in due parti (la prima parte è stata pubblicata sul precedente numero della rivista) prova a ripercorrere l’evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto, evidenziando i cambiamenti che ciascuna decisione ha apportato al quadro giuridico precedente. In questa seconda parte, la dissertazione sui singoli casi giurisprudenziali decisi dalla Suprema Corte prosegue con il caso Planned Parenthood v. Casey. Esso è stato una vera occasione mancata nella storia dell’aborto negli Stati Uniti, perchè venne sfiorata la overrule di Roe v. Wade. Ciononostante, venne sostanzialmente confermato l’impianto delle decisioni precedenti, in considerazione del fatto che una decisione contraria all’aborto avrebbe spiazzato un popolo che per decenni aveva organizzato la propria vita in funzione anche della possibilità di abortire. Con questa decisione si distinse la gravidanza in due periodi: quello della pre-viabilità, in cui la donna era completamente libera di abortire in accordo col medico; quello della post-viabilità, in cui gli Stati avrebbero potuto legiferare, pur dovendo consentire l’aborto nel caso di pericolo per la vita o la salute della madre. Inoltre il diritto d’aborto venne radicato nella libertà riconosciuta nel XIV Emendamento della Costituzione. Nel successivo caso Stenberg v. Carhart fu oggetto di giudizio l’aborto a nascita parziale: una legge del Nebraska aveva bandito questa pratica, ma la legge fu annullata dalla Corte Suprema, nonostante il duro dissenso di ben quattro giudici, fra cui Anthony Kennedy. Successivamente a questa decisione, il Congresso prese l’iniziativa di emanare il Partial Birth Abortion Ban Act. Questa legge fu impugnata in via d’azione davanti alla Corte Suprema e ne scaturì la sentenza Gonzalez v. Carhart. In questa decisione la Corte fece un passo indietro rispetto a Stenberg, affermò la legittimità del bando, sostenne che l’aborto a nascita parziale non è mai necessario per tutelare la vita della donna e che Stenberg era fondato su convinzioni erronee sul punto. Il saggio si conclude con delle interessanti considerazioni in merito ai possibili sviluppi futuri circa il tema dell’aborto negli Stati Uniti, auspica la “liberalizzazione del diritto alla vita” ed avanza una originale proposta, valida per tutti i Paesi in cui l’aborto è legalizzato. ---------- Abortion debate is always a hot subject in the United States. This essay, divided into two parts (the first part has been published on the previous issue of this review) tries to go along the development of U.S. constitutional caselaw about abortion, pointing out the change that each judgement caused to the previous law framework. In this second part, the dissertation about U.S. Supreme Court single case-law goes on by Planned Parenthood v. Casey. It was a real missed occasion in the abortion affair in the United States, because it was on the verge of overruling Roe v. Wade. However, the framework of the previous cases was substantially confirmed, considering that a decision against abortion would place out people who for a long time organized their own life in connection to the right of abortion. By this judgement, pregnancy was divided into two periods: pre-viability, when woman was completely free to have an abortion in agreement with her doctor; post-viability, when States could restrict abortion, except for woman life or health risks. Moreover, abortion right was founded on liberty, acknowledged by XIV Amendement. In the following case Gonzalez v. Carhart, partial-birth abortion was judged: a statute of Nebraska banned this activity, but it was stroked down by Supreme Court, despite of the dissenting opinion of four judges (Anthony Kennedy was one of them). After this judgement, the Congress wanted to issue Partial Birth Abortion Ban Act. This statute was pre-enforcement challenged to the Supreme Court, and Gonzalez v. Carhart was poured. In this judgment, the Court drew back Stenberg, it stated the ban was legitimate, partial-birth abortion never is necessary to safeguard woman health, and Stenberg was founded on wrong beliefs on this matter. This essay concludes with interesting considerations about possible developments about abortion affair in the United States, wishes “liberty of right to life” and proposes a solution for all the countries where abortion is legal.

Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?

2007 ◽  
Vol 101 (2) ◽  
pp. 321-338 ◽  
Author(s):  
THOMAS M. KECK
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Behavior ◽  
Policy Conflict ◽  
Insufficient Attention ◽  
Comprehensive Account ◽  
The Supreme Court

This paper explores three competing accounts of judicial review by comparing the enacting and invalidating coalitions for each of the fifty-three federal statutes struck down by the Supreme Court during its 1981 through 2005 terms. When a Republican judicial coalition invalidates a Democratic statute, the Court's decision is consistent with a partisan account, and when a conservative judicial coalition invalidates a liberal statute, the decision is explicable on policy grounds. But when an ideologically mixed coalition invalidates a bipartisan statute, the decision may have reflected an institutional divide between judges and legislators rather than a partisan or policy conflict. Finding more cases consistent with this last explanation than either of the others, I suggest that the existing literature has paid insufficient attention to the possibility of institutionally motivated judicial behavior, and more importantly, that any comprehensive account of the Court's decisions will have to attend to the interaction of multiple competing influences on the justices.

Estoppel

2019 ◽  
Author(s):  
Kenneth Hamer
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
England And Wales ◽  
Res Judicata ◽  
The Supreme Court ◽  
Chartered Accountants ◽  
Court Of Appeal ◽  
Disciplinary Committee

The Supreme Court held that the doctrine of cause of action estoppel applied to successive complaints before a professional disciplinary body, that disciplinary proceedings were civil in nature and that therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the Disciplinary Committee of the Institute of Chartered Accountants in England and Wales (ICAEW). The Supreme Court so held in allowing an appeal by C-W, a chartered accountant, against the Court of Appeal, which had upheld the dismissal of his application for judicial review of the decision by the Committee to refuse to dismiss a second complaint based on the same facts of a first complaint that had been dismissed on the merits.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

scholarly journals The Settlement of Boundary Disputes Through Testing of Legislation in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 01003
Author(s):  
Suparto ◽  
Rahdiansyah
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Regional Autonomy ◽  
Boundary Disputes ◽  
Legal Principle ◽  
The Supreme Court ◽  
Long Time ◽  
The Government ◽  
Settlement Of Disputes

Boundary dispute is a new phenomenon that occurred in the era of regional autonomy followed by the expansion of the region. One of them occurred between Kepulauan Riau and Jambi Provinces related to Berhala Island ownership. Settlement of disputes between these two provinces took quite a long time and also caused tensions between two provinces. Actually, the government through the Ministry of Home Affairs has issued a regulation to solve the boundary problem of this area namely the Minister of Home Affairs Regulation No.1 in 2006 and No. 76 in 2012 on Guidelines for Confirmation of the Boundaries, however, is still less effective because although it has been done in such a way the party who feels aggrieved still take another way that is by testing the legislation to the Supreme Court or Mahkamah Konstitusional (Constitutional Court). An example is the boundary dispute between Kepulauan Riau and Jambi Province which was resolved through the examination of legislation to the Supreme Court and the Constitutional Court. In the case, there were 3 decisions, namely Supreme Court Decision No.49P/HUM/2011, Decision of the Constitutional Court No. 32/PUU-X/2012 and the decision of the Constitutional Court No. 62/PUU-X/2012. Based on the research results obtained as follows 1). Implementation of the principle or legal principle of lex posterior derogat lex priori by the Supreme Court 2). The decision of the Supreme Court was taken into consideration in the decision of the Constitutional Court 3). The cause of the territorial boundary disputes between Kepulauan Riau Province and Jambi Province was the synchronization of 3 related laws namely Indonesian Law no. 31 in 2003, Law no. 25 in 2002 and Law no. 54 of 1999.

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

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