Weak-Form Judicial Review and "Core" Civil Liberties

Academia.edu, 2024

The doctrine of judicial review in the United States protects natural and analogous civil rights from erasure by hostile democratic, theocratic, or authoritarian forces. This essay discusses what the contours of some of these rights are and how the judicial system does, or should, safeguard them. (minor edits on January 7, 2025)

Social Science Research Network, 2009

Southeastern Political Review, 2008

This paper examines the types of laws challenged and overturned in the supreme courts of all 50 states from 1981 through 1985. Major findings are that criminal statutes are challenged more frequently but overturned less often than other types of statues. Challenges to laws regulating economic activity account for just under a quarter of our cases and these laws are overturned over 20 percent of the time. Private cases, which make up about 14 percent of the data set result in invalidation about a fifth of the time. While there are fewer civil liberties and governmental cases, these cases result in laws being declared unconstitutional more frequently, over one-third of the time. More specifically, death penalty laws are overturned in less than three percent of the cases in which they are challenged. On the other hand, cases involving statutes alleged to unconstitutionally discriminate and those regulating local government result in invalidation over half the time.

Ohio State Law Journal, 2004

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges' religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. In this comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial * Professor of Law, University of St. Thomas School of Law (Minneapolis) (gcsisk@stthomas.edu). B.A., 1981, Montana State University; J.D., 1984, University of Washington. For assistance with preliminary background research and collection of opinions, I thank my research assistants, Jessica Braeger of the Drake

The Yale Law Journal, 2006

This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions.

Madridge J Behav Soc Sci, 2019

The United States is in the grip of an extended debate over the meaning of the free exercise of religion. This is especially true as religious liberty has come increasingly to be claimants. One case that raises challenging questions about the scope of religious freedom is the federal district court case of Cochran v. City of Atlanta. In this short piece, I first provide a summary of the Cochran decision. Although detailed jurisprudential analysis cannot be provided in this piece, I do work to situate this decision within an emerging trend within American constitutional law: the trend to redefine religious liberty not as a free-standing constitutional protection but as one sub-element of a wider species of rights, specifically, the right of personally expressive speech. Through a short review of salient aspects of English and American legal history, I develop a three-stage argument for suspecting that this move contains the potential to water down the degree to which the federal judiciary provides robust protection of the right of religious liberty.

Wm. & Mary Bill Rts. J., 1996