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This chapter argues that a pro-democracy First Amendment should also be a pro-union First Amendment. It is an article of faith that a significant purpose of the First Amendment is to enable and improve democracy, by helping Americans access the information they need for democratic deliberation and participation. Further, a considerable body of research shows that labor unions make American democracy stronger and more representative. But despite this, the Supreme Court has treated unions’ political advocacy in cases involving union agency fees with suspicion and disdain. After describing this unfortunate situation – one that is likely to get worse under the current Supreme Court – the chapter closes on a note of optimism, looking ahead to a time when scholars and advocates can realistically begin the work of rebuilding a First Amendment that recognizes labor unions as democracy-enhancing institutions.
In An NHS Trust v. Y, the UK Supreme Court ruled that it is not mandatory to seek judicial approval for decisions to withdraw feeding tubes (clinically assisted nutrition and hydration (CANH)) from patients in vegetative or minimally conscious states. The courts remain available where a patient's best interests are in dispute (e.g. between family and clinicians) or where a decision is 'finely balanced’. We welcomed this decision. Our research at the Coma and Disorders of Consciousness Research Centre over the previous decade had shown how mandatory court hearings work against these patients’ best interests ‒ in particular by creating situations where patients are treated by default (sometimes for decades) without consideration of whether ongoing CANH is in their best interests. This chapter highlights the significance of the Supreme Court judgement, tells the story of the movement for law reform that culminated in that judgement, and explores the role played by different evidence, arguments, case law, professional bodies, and networks in creating change. We explain how, as academics, advocates and activists, we contributed to the collective effort that achieved this reform.
This article argues that the Supreme Court should not require a religious exemption from vaccine mandates. For children, who cannot yet make autonomous religious decision, religious exemptions would allow parents to make a choice that puts the child at risk and makes the shared environment of the school unsafe — risking other people’s children. For adults, there are still good reasons not to require a religious exemption, since vaccines mandates are adopted for public health reasons, not to target religion, are an area where free riding is a real risk, no religion actually prohibits vaccinating under a mandate, and policing religious exemptions is very difficult.
This paper assesses the functioning of law and legal institutions in Palestine/Israel through the lens of settler colonialism by analysing two thematically interconnected decisions issued by the Supreme Court of Israel, the first involving the starvation of besieged Palestinian civilians and the second involving the force-feeding of Palestinian prisoners. Following a discussion regarding the role of law in settler colonialism, it proceeds to argue that the Court enabled, legitimised and legalised state-sanctioned violence that targeted the native Palestinian population by and through a jurisprudence of elimination in order to facilitate the attainment of Israeli settler-colonial objectives. By so doing, the paper provides further evidence in support of the appropriateness of settler colonialism as a theoretical framework for the case of Israel, including in legal matters.
The Epilogue examines the state of free speech during the COVID-19 pandemic at a time when American politics is polarized and the state of public discourse is in shambles. Both sides claim victimhood and argue that the other side should be suppressed, illustrating the adage “free speech for me but not for thee.” Both sides even justify violence in support of their respective causes. But events of the past year reveal the danger of abandoning neutral principles when it comes to protecting speech. Lowering the legal barrier for what constitutes incitement may allow the prosecution of Donald Trump, but it would also put Black Lives Matter activists at risk. Safety can best be found in avoiding the mindset of the censor.
Chapter 8 explores the rise and fall of the FCC’s policy against broadcast indecency by following the exploits of anti-indecency crusader Brent Bozell, founder of the Parents Television Council (PTC). It traces the beginnings of the FCC’s policy in the early days of radio, and how it was transformed as courts began to develop First Amendment doctrine. It explains the birth of the FCC’s current indecency policy with its action against George Carlin’s “seven dirty words,” and how it was driven by political demands to get tough on broadcasters. This reached a crescendo because of the efforts of Bozell’s PTC and similar groups, who bombarded the FCC with spam email campaigns. Politicians responded by imposing skyrocketing fines based on an increasingly incoherent and confusing policy. The widespread chilling effect on broadcasters led courts to rein in the FCC’s authority in this area. Bozell and his fellow crusaders managed only to discredit themselves, to diminish the influence of their organizations, and to undermine FCC authority over broadcast content.
Beginning in the nineteenth century with Anthony Comstock, America's 'censor in chief,' The Mind of the Censor and the Eye of the Beholder explores how censors operate and why they wore out their welcome in society at large. This book explains how the same tactics were tried and eventually failed in the twentieth century, with efforts to censor music, comic books, television, and other forms of popular entertainment. The historic examples illustrate not just the mindset and tactics of censors, but why they are the ultimate counterculture warriors and why, in free societies, censors never occupy the moral high ground. This book is for anyone who wants to know more about why freedom of speech is important and how protections for free expression became part of the American identity.
The chapter revisits some of the main contributions by Meir Shamgar, who served between 1961 and 1995 as Israel’s Military Advocate General, Attorney General, Judge and President of the Supreme Court, to the development of Israeli jurisprudence relating to the interpretation and application of international law in general, and the law of belligerent occupation in particular. Arguably, the legal structures constructed by Shamgar proved to be resilient because they were based on his deep understanding of international law and commitment to basic legal values. Among the topics discussed are Shamgar’s contribution to subjecting Israel’s activities in the West Bank and Gaza Strip to rule of law concepts, his nuanced position on the application of the Fourth Geneva Convention, his support for a flexible interpretation of the law of belligerent occupation and the balancing he performed between Israeli security interests and the needs and interests of the Palestinian inhabitants. While this chapter focuses on the work of one exceptional Israeli jurist, it offers broader insights about Israel’s approach to international law and the law applicable to the occupied territories, and about the relationship between international law as a constraint upon political power and as a cloak for the exercise of such power.
The chapter describes David Kretzmer as a role model for a world-renowned expert: the exceptional breadth of his expertise, the razor-sharpness of his inquiries, his ability to differentiate between law and politics in sensitive issues, his courage to deal critically with ‘the embarrassing’, his exemplary teaching, his impeccable intellectual integrity, his activism in protecting human rights and his modesty. The article briefly describes Kretzmer’s contributions on several issues: the legal status of the Israeli Arab-Palestinian citizens, the Israeli belligerent occupation and counter-terrorism measures like deportations, house demolitions and targeted killings, judicial activism and other trends (both transparent and hidden) in the Israeli case law, and racial incitement as a criminal offense. It exemplifies Kretzmer’s impact on the Israeli Supreme Court.
The referendum vote in 2016 to leave the European Union (Brexit) and the process for its implementation have had a significant impact on the devolution framework, and in particular on its legal mechanisms for ensuring harmonious relations between Westminster and the devolved legislatures, and for resolving conflicts between them. Focusing on the Miller and Scottish Continuity Bill cases, this chapter highlights the problems arising from the use of the mechanisms established in the devolution settlements, primarily designed to ensure that the devolved legislatures do not act ultra vires, for the legal resolution of competence conflicts between both orders of government. Taking into consideration the significant role that the courts play in federal or quasi-federal systems by providing an independent and balanced interpretation of the constitutional framework, this chapter reflects on the effectiveness of these mechanisms in the UK system and argues that, in the light of recent developments, they need to be reformed to enable the access of the devolved institutions to the courts in this context.
In this chapter we consider who gerrymandering harms and how. We start by explaining how Vieth v. Jubelirer (2004) and the revival of gerrymandering after 2010 can be viewed as an attempt to roll back the voting rights revolution of the 1960s. That is to say, it is a fundamental assault on the principle of “one-person, one-vote.” We then consider how the harms of state legislative gerrymandering are different than the harms caused by congressional gerrymandering, given the role of state legislatures in redistricting and regulating elections at all levels. Then we consider the question of who suffers harm produced by partisan gerrymandering. We show that those suffering harm are not only those in gerrymandered districts or identifying with disadvantaged parties, but rather all citizens. Finally, we consider gerrymandering in the context of the broader crisis of faith in democracy and on American federalism.
Judicial nominations, particularly those to the Supreme Court, have been a salient topic in recent presidential and senate elections. However, there has been little research to determine whether judicial nominations motivate political behavior. Across three studies we demonstrate the important role judicial nominations play in influencing political behavior. In Study 1, we analyze the extent to which voters perceive judicial nominations as an important electoral issue. We find that Republicans—and especially strong Republicans—are more likely to perceive judicial nominations as important. In Study 2, we analyze how congruence with an incumbent Senator's judicial confirmation votes influences voters’ decision to vote for the incumbent. We find that congruence with a Senator's judicial confirmation votes is a strong predictor of vote choice. Finally, in Study 3, we analyze data from an original conjoint experiment aimed at simulating a Senate primary election where voters must select among co-partisans. We find that Republican subjects are more likely to select a primary candidate who prioritizes confirming conservative Supreme Court nominees. Among Democratic subjects, however, we find that Democratic candidates who prioritize the Court might actually suffer negative electoral consequences. Overall, our results demonstrate the importance of judicial nominations as an electoral issue.
Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.
This chapter explores the interplay between the genre of the slave narrative and Supreme Court cases concerning copyright and fugitivity decided in the 1830s and 1840s. Looking in particular at the 1838 Narrative of James Williams, a work quickly challenged for its veracity, this chapter reveals important connections between literary works and legal decisions.
A new argument about interpretation appeared in the twentieth century: the idea that Supreme Court justices should make their own judgments about the best national policy, and then write their opinions in language that gives the impression that the decision represents an interpretation of the Constitution. This chapter argues that decision science says that the Supreme Court justices are not well-suited for making good policy decisions, and that, if they do so, they should be transparent in their reasoning. For thousands of years, the public and its elected representatives have looked to the courts to provide answers to difficult and important issues involving interpretation, something for which judges are well-trained and well-placed to do. When that traditional process metamorphizes into pure political policymaking, the justices need to defend it as such, and not put at risk the Court’s essential role as the authoritative interpreter of legal texts.
We begin our data analysis in Chapter 5, which empirically links our broad predictive theory of the judicial tug of war to the nation’s courts. This chapter examines the federal courts, the most politically important courts in the entire American judiciary. As we show in this chapter, fights over federal courts appointments illustrate the tense tug of war between the national bar and politicians. Given that federal courts appointments operate with the advice and consent of the US Senate, an elected body whose political leanings do not dovetail with the bar’s, we expect to see (and we document using empirical data) an ideological divergence. In the last decade, this divergence manifests itself in a federal judiciary that is substantially more conservative than is the national bar. As we show, this also creates supply-side incentives among legal elites. Specifically, conservative graduates of elite law programs have a much higher probability of becoming a judge (of any kind); their relative scarcity in law schools and in the academy, furthermore, has increased the importance of conservative-leaning legal associations, such as the Federalist Society.
This chapter completes discussion of the doctrine of separation of powers that began in Chapter 4. The doctrine of the separation of powers requires that the judiciary remains separate and independent of both the executive and the legislative arms of government. This separation is enshrined in the Australian Constitution. In this chapter we look more closely at the courts. In particular, we look at how the courts are created through their constitutional and statutory basis. We look at the nine separate hierarchies of the courts in Australia, and how courts within these hierarchies interact, yet create only one common law for Australia. We look at how the courts have changed in Australia since colonial times, to examine the rise of specialised tribunals and the introduction use of technologies over time.
In many democratic countries, talented individuals run for the nation’s top elected office under the banner of newly formed parties. Once in a while, these individuals manage to win. In France, for example, a new party called En Marche! was formed on April 6, 2016. The party’s full name, “La République En Marche!” roughly translates as “The Republic on the Move!” This party backed Emmanuel Macron for the French presidency in 2017. Macron received 24 percent of the vote in the first round of the French presidential election on April 23, placing first out of five candidates. A second-round runoff with the top two candidates was then held, and Macron was elected President with 66.1 percent of the vote. In the legislative elections of June 2017, En Marche! also won a majority of the seats in the National Assembly, the French parliament.
Chapter 2 develops a policy-based theory of public support for Court-curbing, which represents an alternative to process-based perspectives popular in the literature. The chapter distinguishes “broadly targeted Court-curbing,” or support for attacks on the institution’s powers and independence, from “narrowly targeted Court-curbing,” or support for attacks on the Court’s specific rulings. While disagreement with the general ideological direction of the Supreme Court strongly impacts support for broadly targeted Court-curbing, disagreement with specific rulings has a larger effect on narrowly targeted curbing. The theory also explains how and why partisan polarization reduces citizens’ willingness to defend the Court and discusses competing perspectives for how citizens’ level of political engagement moderates the effect of policy disagreement.
Chapter 3 describes in detail the data sources and research designs used throughout the book, including observational data sources, experiments on national samples of American citizens, and panel surveys tracking the same people over time. It also summarizes aggregate public opinion on key variables through time, including approval, confidence, trust, procedural perceptions, and broadly targeted and narrowly targeted Court-curbing. The chapter concludes that the Court’s “reservoir of goodwill” within the American public is not as deep or wide as many scholars suggest.