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In Defense of Deference
Full text linkPart of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"Fuentes-Rohwer, Luis; Charles, Guy-Uriel E.. (2004). In Defense of Deference. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/169664
The Empitness of Majority Rule
Full text linkIn this Note, the author steers away from the current substantive debates surrounding the Voting Rights Act, its various amendments, and the correct way of interpreting its intended benefits and constitutionally accepted mandates. Instead, indirectly joins the many radical voices advocating for a departure from the majoritarian stranglehold-the decision-making process where fifty percent plus one of the voting population carry the election. The author does so not by suggesting yet another mechanism by which representatives may be elected, but by critiquing the perceived underpinnings of our democratic system of government. The author does not profess to delineate a definitive interpretation of American democracy, but rather to show what it is not required to be. More specifically, this Note directly confronts the majoritarian foundation upon which America\u27s political society arguably rests, and posits that our reliance on the simple majoritarian paradigm is unwarranted. In short, the author argues that democracy entails anything from unanimous decision-making to simple, fifty-percent-plus-one majority rule
Foreword: Reflections on our Founding
Full text linkLaw Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Similarly, law professors have developed what Lawrence Friedman calls “a literature of invective” against law reviews. Adam Liptak summarized one line of criticism with a question: “[W]hy are law reviews, the primary repositories of legal scholarship, edited by law students?
Understanding the Paradoxical Case of the Voting Rights Act
Full text linkThis is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. The recent case of Namudno v. Holder, decided this past term, follows this established script; in dodging the constitutional question and deciding the case on technical statutory grounds, the Justices placed themselves squarely within the history and tradition of the Act. This Article concludes that the Court’s handling of the Act is best explained as an exercise in “living constitutionalism,” with the justices acting strategically in pursuit of their policy goals
Reynolds Revisited
No full textProfessor Fuentes-Rohwer\u27s contribution, co-written with Guy-Uriel E. Charles, is titled Reynolds Revisited.https://www.repository.law.indiana.edu/facbooks/1170/thumbnail.jp
Of Platonic Guardians, Trust, and Equality: A Comment on Hasen\u27s Minimalist Approach to the Law of Elections
Full text linkLooking for a Few Good Philosopher Kings: Political Gerrymandering as a Question of Institutional Competence Is Our Constitutional Order Broken - Structural and Doctrinal Questions in Constitutional Law: Gerrymandering, Congressional Representation, and Trust in the Political System: Essay
No full textThe redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, particularly the U.S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. The courts have taken sides, to be sure, but these can only be described as acts of volition and will, not constitutional law. The leading case was Reynolds v. Sims. This was when the Supreme Court ultimately divorced these political questions from the constitutional text. Reynolds informed all subsequent case law within the Law of Democracy. If the Court could decide Reynolds as it did, it could decide anything. But this is not true for political gerrymandering questions. What explains this hesitation on the part of the Justices? This Essay answers this important question. Understanding the Justices as strategic actors, this Essay conjectures that the Court removes itself as an institutional player in the gerrymandering debate because the redistricting process left alone tilts to conservative policies and outcomes. More generally, this Essay argues that scholarly calls for judicial intervention demand the existence of philosopher kings to choose amongst myriad theories of representation. These are calls, in effect, for an activist judicial role in an area that demands judicial deference. At the very least, this is an area that demands comparative institutional analysis. This is something we seldom see
Taking Judicial Legitimacy Seriously
No full textChief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, social science research makes clear that the legitimacy of the Court is not compromised so long as the Justices exercise their authority in a principled way. What the Justices may not do is be perceived as behaving strategically. Note the irony. In recent years, Chief Justice Roberts, and particularly his opinion in Sebelius, is seen as the high water mark of strategic decisionmaking. A second view of judicial legitimacy equates legitimacy with compliance and acceptance of judicial outcomes precisely because the Court issues them. The data is complex but history is also on the Court’s side. Consider in this vein the reception to Baker v. Carr, or Bush v. Gore, or Shelby County v. Holder. Why does Chief Justice Roberts raise concerns about judicial legitimacy? The Essay concludes that this is in itself a strategic move and a selective concern. There is very little the Court can do to compromise its legitimacy. Concerns about judicial legitimacy are either ignorant of what judicial legitimacy is and the vast body of work that explains it, or else it is a feigned worry designed to disguise a substantive agenda
Rethinking Section 5 of the Voting Rights Act
No full textProfessor Fuentes-Rohwer\u27s contribution, chapter 3, is titled Rethinking Section 5 of the Voting Rights Act. It is co-written with Guy-Uriel E. Charles of the University of Minnesota Law School.https://www.repository.law.indiana.edu/facbooks/1011/thumbnail.jp
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