Judgment Calls: Principle and Politics in Constitutional Law

Judgment Calls: Principle and Politics in Constitutional Law

Judgment Calls: Principle and Politics in Constitutional Law

Judgment Calls: Principle and Politics in Constitutional Law

Synopsis

Judgement Calls tackles one of the most important and controversial legal questions in contemporary America: How should judges interpret the Constitution? Our Constitution contains a great deal of language that is vague, broad, or ambiguous, making its meaning uncertain. Many people believe this uncertainty allows judges too much discretion. They suggest that constitutional adjudication is just politics in disguise, and that judges are legislators in robes who read the Constitution in accordance with their own political views. Some think that political decision making by judges is inevitable, and others think it can be restrained by "strict constructionist" theories like textualism or originalism. But at bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground. Farber and Sherry disagree, and in this book they describe and defend that middle ground. They show how judging can be--and often is--both principled and flexible. In other words, they attempt to reconcile the democratic rule of law with the recognition that judges have discretion. They explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements. In exploring how constitutional adjudication works in practice (and how it can be made better), Farber and Sherry cover a wide range of topics that are relevant to their thesis and also independently important, including judicial opinion-writing, the use of precedent, the judicial selection process, the structure of the American judiciary, and the nature of legal education. They conclude with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action. Timely, trenchant, and carefully argued, Judgment Calls is a welcome addition to the literature on the intersection of constitutional interpretation and American politics.

Excerpt

This is a short book, but it took a long time to write. in two previous books, Beyond All Reason and Desperately Seeking Certainty, we criticized some currently popular theories like originalism, the view (held by many conservative constitutional scholars) that the Constitution’s meaning is fixed by the history of its creation. We also criticized theories of leading scholars at the other end of the ideological spectrum. Having taken shots at the views of so many of our academic colleagues, it seemed only fair that we lay out our own views of how law, and constitutional law in particular, should operate. Easier said than done! It took us longer than we would like to admit to crystallize our own views, let alone write them up in a comprehensible fashion.

Our thesis begins with the assumption that many key constitutional cases leave judges with leeway because the results are not clearly dictated by any source of constitutional authority, whether the language of the Constitution, its history, or precedent. We believe, however, that this leeway does not preclude reasoned decision making. Our major aim is to explain and defend the thesis that even in hard cases . . .

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