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The Constitution was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But those protections are meaningless without judges who are fully committed to enforcing them, and America's judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it, as the Supreme Court did in upholding the Affordable Care Act, which represented the largest?and most blatantly unconstitutional?expansion of federal power since the New Deal.T

GShould be required reading . . . for all historians, jurists, lawyers, political scientists, and government officials who in one way or another are responsible for understanding and interpreting our civil rights past.GGHarold M. Hyman, Journal of Southern History.

Why do unelected federal judges have so much power to make policy in the United States? Why were federal judges able to thwart apparent legislative victories won by labor organizations in the Lochner era? Most scholars who have addressed such questions assume that the answer lies in the judiciary's constitutionally guaranteed independence, and thus worry that insulated judges threaten democracy when they stray from baseline positions chosen by legislators. This book argues for a fundamental shift in the way scholars think about judicial policy-making. Scholars need to notice that legislators also empower judges to make policy as a means of escaping accountability. This study of legislative deference to the courts offers a dramatic reinterpretation of the history of twentieth-century labor law and shows how attention to legislative deferrals can help scholars to address vexing questions about the consequences of judicial power in a democracy

Cover -- Title Page -- Copyright Page -- Table of Contents -- Acknowledgments -- Introduction -- 1. A Republican Constitution -- 2. The Politics of Obligation -- 3. Madison's Judges -- 4. The Antipolitical Constitution -- 5. Cases and Controversies -- Notes -- Index -- Back Cover.

In the first comprehensive study of election law since the Supreme Court decided Bush v. Gore , Richard L. Hasen rethinks the Court's role in regulating elections. Drawing on the case files of the Warren, Burger, and Rehnquist courts, Hasen roots the Court's intervention in political process cases to the landmark 1962 case, Baker v. Carr. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process. The Supreme Court does have a crucial role to play in protecting a socially constructed "cor

Article III of the Constitution established the judicial branch of the United States, consisting of the Supreme Court and of any ""inferior Courts as the Congress may from time to time ordain and establish.... "" To staff such courts, the Constitution empowered life-tenured and salary-protected judges to adjudicate certain ""cases"" or ""controversies,"" including cases arising under the Constitution. The Supreme Court, in Marbury v. Madison, held that the judicial power to interpret the Constitution necessarily includes the power of judicial review-that is, the power to countermand the decisi

Constitutional rights protect individuals "vertically" against government overreach, but may also regulate legal relations "horizontally" among private parties in most legal systems. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about those choices and their consequences. It offers three case studies, of Germany, the United States, and Canada, showing how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.

Can the Supreme Court be free of politics? Do we want it to be? Normative constitutional theory has long concerned itself with the legitimate scope and limits of judicial review. Too often, theorists seek to resolve that issue by eliminating politics from constitutional decisionmaking. In contrast, Terri Peretti argues for an openly political role for the Supreme Court. Peretti asserts that politically motivated constitutional decisionmaking is not only inevitable, it is legitimate and desirable as well. When Supreme Court justices decide in accordance with their ideological values, or consi

Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This text is about how different courts make those choices, and about the consequences that they have.