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During the Old and New Order regimes, the status and legitimacy of the Supreme Court was in a state of despair. The reformasi enabled the judiciary and the Supreme Court in particular to strengthen its independence, power and prestige by having, among others, a more free appointment and removal process of Supreme Court judges, new power to manage the personnel and resources of the lower courts as well as expansion of its own organization and budget. Despite such progress, as the highest judicial organ in the land with power to interpret the law, review government actions and regulations and control the overall courts, the Supreme Court missed the opportunity to establish its legitimacy in the eyes of the public and other state institutions. This had led them to look for other venues to protect their rights and interest, such as by bringing the cases to the Constitutional Court. This chapter examines some of the major changes and dynamics during the reformasi and explains how and why the Supreme Court fails to perform its basic function to provide legal certainty, protection and check and balance to the other arms of government.
The dominant accounts of the Indian Supreme Court’s capacity for social transformation place considerable emphasis on the exceptional public trust and confidence in the Indian judiciary. Using National Election Studies post election survey data collected following the 1996 and 2009 Parliamentary elections, this is the first study to evaluate and assess the nature and extent of trust in Indian courts using public opinion data. We find that Indians have remarkably high levels of trust and confidence in the Indian judiciary across socio-demographic factors and consistently across the two time periods examined in this study. Secondly, we find that standard explanations based on caste and religious identity do not find purchase when explaining trust in the judiciary. Nor does class status. Finally, we find that trust in elected institutions is positively associated with trust in the judiciary providing preliminary support for the institutional legitimacy or a diffuse support hypothesis. We conclude that the Indian judiciary enjoys significant public trust and confidence, that provides the institutional legitimacy for an innovative and radical approach to constitutional adjudication.
Following a period of great enthusiasm about the role of public interest litigation (PIL) as a tool for social change in India, there is now skepticism. It is often argued that the stated objective of PILs in the 1980s, to defend the interests of a disadvantaged and marginalized population, has now been lost. Is the skepticism justified? This chapter provides an empirical analysis of beneficiary inequality in the Indian Supreme Court between 2009 and 2014. Based on an analysis of public interest cases at the Supreme Court, the chapter seeks to characterize who uses public interest litigation in India, who wins and who loses, and the policy areas that occupy the Court's PIL docket. In doing so, it discusses broader patterns in the use of public interest litigation in India.
The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme Court opinions yet created to provide a broad, quantitative overview of the social identity of the litigants that approach the court, the types of matters they bring to the court, the levels of success that different groups of litigants have before the Court, and the opinion-writing patterns of the various judges of the Supreme Court. This analysis provides foundational facts for the study of the Court and its role in progressive social change.
The Indian Supreme Court sits in panels and can have up to 31 judges. This chapter explores how the Indian Supreme Court developed its current structure and the impact of this structure on its functioning. It argues that the Supreme Court’s structure has a range of inter-related effects that includes increasing access to the Court, producing a “polyvocal” jurisprudence that destabilizes stare decisis, spurring experimentation among judges, fostering a “Chief Justice dominant” Court, and reducing the perceived partisanship of judges. Mapping the structure of the Court, as well as the Court’s relationship with the rest of the judiciary, helps us appreciate how judges ultimately interpret the law and the Constitution not in isolation, but within a larger judicial architecture.
When the English Judicature Acts were adopted in Victoria, there was scarcely a need for them. From its establishment, the Supreme Court of Victoria held legal and equitable jurisdiction and little differentiation between law and equity. Indeed, the successful operation of the court before the English Judicature legislation shows how much the success of a court depends on the skill and work of its judges and officers as distinct from its institutional structure. This is shown through a study of the work of Justice Robert Molesworth, who as the principal equity judge for a long period in effect embodied equity in Victoria. His versatility and industry are examined to explain why law and equity operated harmoniously, and why the professional and practical dualism experienced in England – which motivated reform – was absent from Victoria. Hence the inutility of the Judicature Act reforms later introduced in Victoria.
New South Wales was very late to receive the Judiacture Act system that effected fusion, and has been significant in discussions of fusion since for that reason. But did New South Wales need to administer law and equity separately in the first place? This chapter shows that when the Supreme Court was established, law and equity were administered without different courts or parts of the one court. There was already fusion, in that sense. But later, under colonial instruction, the fused court was differentiated when rules of court were made to replicate the procedures of the Court of Chancery at Westminster. In time, that differentiation became entrenched, and acquired some of the defects of the dual system abolished in England in 1875. Although the original set-up of the court did not require fusion – since it was already fused – by the 1960s fusion was needed, and came in 1972. The chapter shows the influence of local judicial figures and local events on experiences of fusion.
Chapter 4 details how antebellum Americans followed the spirit as well as the letter of the Constitution. Conservative Northerners embodied the “spirit of 1787,” aiding the Southern minority on matters relating to slavery when the explicit provisions of the Constitution were not sufficient. These conservative Northerners did their constitutional duty by providing sectional balance to proslavery presidential tickets, thereby giving the appearance that the South did not dominate the executive branch. In Congress, conservative Northerners also voted with Southerners on sectional bills, blocking antislavery measures and passing proslavery ones. The most important of these bills formed the grand sectional compromises: the Missouri Compromise, the Compromise of 1833, and the Compromise of 1850. These compromises gained the aura of de facto constitutional amendments. Unfortunately, these grand sectional compromises did not solve the constitutional problems raised by slavery; they only delayed the final reckoning. On the federal bench, Northern conservatives cast votes for and occasionally wrote proslavery decisions, including most notoriously Dred Scott v. Sandford (1857). Thus, all three branches of the government established by the Constitution were affected by the sectional struggle over slavery.
James Wilson, born in Scotland and educated during the Scottish Enlightenment, became one of the most influential jurists and statesmen of the American founding era. He signed the Declaration of Independence, served as an influential delegate to the Constitutional Convention, became one of the first justices of the U.S. Supreme Court, and was the first law professor at the University of Pennsylvania. As a framer, jurist and educator, he consistently argued for recognizing the sovereignty of the people themselves, which he believed was a central component of a God-given natural law. Many of Wilson’s views that were innovative or controversial at the time – such as the concepts of popular sovereignty, one person-one vote, and the power of the Supreme Court to strike down unconstitutional laws – have become important elements of modern American government.
Connecticut’s Roger Sherman and Oliver Ellsworth were among the most important participants in the War for Independence, the Constitutional Convention, and the First Federal Congress. As well, both served on their state’s Superior Court, and Ellsworth was chief drafter of the Judiciary Act of 1789 and Chief Justice of the United States from 1796–1800. Their religious convictions, informed by Reformed theology, influenced their contributions to the creation of America’s constitutional order, and they represent well the 50–75% of Americans in this era who Calvinists.
John Jay (1745–1829) was the first chief justice of the United States Supreme Court, and shortly before that coauthored The Federalist with Alexander Hamilton and James Madison. Earlier, he had been the critical negotiator of the Treaty of Paris that ended the American Revolution on favorable terms, and in 1794 he was the negotiator of the Jay Treaty that averted a new war with Britain. His religious faith has been described by political and legal historians as being a new light “Christian enthusiast” and falling among “the most orthodox Christians.” Jay’s own statements about his faith are consistent with those descriptions. The impact of Jay’s faith on his public service and policy positions generally has not been mentioned, other than his belief in a “great plan of Providence.” However, that impact was express in his antislavery, pro-Native American, peacemaking, just war, natural law, religious freedom, and other beliefs and actions.
This article examines the Supreme Court’s role in the development of federal conscientious objector policy in the twentieth century. Focusing on two key periods—the three years following the end of World War II, and the era of the Vietnam War—I argue that the policy’s evolution was more complex than previous studies have indicated, and that the Court’s changing attitudes toward conscientious objection can be traced to the justices’ increasing but irresolute concern for civil liberties. By the early 1970s, the Court was interpreting federal statutes much more broadly than Congress ever intended, but the justices remained divided over just how broad those interpretations should be. While the end of the draft rendered the question of compulsory military service moot, the Court’s failure to arrive at a clear position on conscientious objection has had lasting implications on other issues.
Do judges telegraph their preferences during oral arguments? Using the U.S. Supreme Court as our example, we demonstrate that Justices implicitly reveal their leanings during oral arguments, even before arguments and deliberations have concluded. Specifically, we extract the emotional content of over 3,000 hours of audio recordings spanning 30 years of oral arguments before the Court. We then use the level of emotional arousal, as measured by vocal pitch, in each of the Justices’ voices during these arguments to accurately predict many of their eventual votes on these cases. Our approach yields predictions that are statistically and practically significant and robust to including a range of controls; in turn, this suggests that subconscious vocal inflections carry information that legal, political, and textual information do not.
This article describes and critiques the judicial reasoning of Indonesia’s Supreme Court, through the lens of the Court’s reviews of subnational laws during 2011–17. The resulting picture is a negative one. Most of the Court’s decisions were critically flawed, with either very little or no reasoning, and inconsistencies with past decisions. Worse, the Court appears keen to avoid hearing important cases that raise difficult political issues, even though the law governing those issues is clear and easy to apply. These inadequacies are perpetuated by genuine uncertainty about the precise jurisdiction of the Court in judicial review cases. However, the Court has not sought to resolve this uncertainty. Indeed, these decisions appear to reflect a court paying little regard to judicial transparency and accountability, and unwilling or unable to act as an effective check on government power.
Researchers using survey experiments typically assume respondents are blank slates, encountering information for the first time. We study how prior real-world information dissemination through the mass media shapes experimental results. We show prior exposure can lead us to both under- and overestimate true framing effects in experiments. Message clarity moderates the impact of pre-treatment, with clear information more likely to produce pre-treatment effects than unclear information.
Norman Doe's book Christian Law compares and contrasts the internal regulations of churches and seeks to identify principles common to churches across the denominational spectrum. This response to Doe's work reviews the religious questions that have come before the House of Lords and Supreme Court since 2004 and seeks to identify the principles governing the secular courts' approach to religious questions. The relationship between those principles and the principles outlined in Christian Law is far from clear. While an understanding of the rules of particular religious bodies is sometimes necessary for secular judges deciding civil rights in a religious context, in most cases the courts are not concerned with the conformity of religious beliefs with religious laws, but simply with protecting the freedom to hold and manifest those beliefs.
In this essay, I contend that the elevation of Clarence Thomas to the Supreme Court, and the evisceration of civil rights it has enabled, should be understood in part to reflect a tragic mistake on the part of Black America writ large. I will argue it represents the absence of a fully embodied vision of racial justice—one that genuinely symbolizes the entire panoply of concerns that must be addressed if the quest for racial equality is to ever be fully realized in the United States. Importantly, what this essay will point to is a political and discursive failure to center the concerns of Black females at the heart of our racial justice agenda.
Across Latin America, many former presidents have faced criminal prosecutions on corruption charges, with widely varied outcomes. As with an impeachment, law and politics intersect in the prosecution of a president. In this essay, I examine this nexus by mapping the actions of agents who mobilise to influence how the justice system processes presidential prosecutions: first, accountability actors located in state-based institutions and civil society; second, partisan actors in the executive and legislative branches; and third, defendants, and their partisan and civil society supporters. This study argues that variations in the make-up, resources and alignment of these sets of actors fundamentally shape the trajectory of legal cases. Proceedings against three former presidents of Ecuador are analysed: Abdalá Bucaram, Jamil Mahuad and Gustavo Noboa.
EU ‘general clauses’ on fairness offer significant potential for improved consumer protection. However, the Supreme Court has interpreted the unfair terms general clause and a related provision by reference to an underlying ethic of self interest and self reliance'; and the same approach is possible under the unfair practices general clauses. This is a significant threat to consumer protection. A more protective ethic may be intended at EU level; and a particular line of argument may be needed to persuade the Supreme Court of this.