Publication Type: Conference Paper/Unpublished Manuscript
Abstract: For much of the 20th Century the Court allocated substantially more of its agenda to cases involving individual rights claims than to cases involving power distribution among governmental entities. The Court began deciding more significant separation of powers cases in the 1970’s and 1980’s, and in the latter decade and into the 1990’s also began to become significantly more interested in policing the federal system.In the first decade of the 21st century that trend has continued, with the Court now a key player in the legal controversies about presidential power during war time._x000d_How do we explain this development and what are its implications for inter-branch relations in the U.S. context? I explore these questions, arguing that the increased agenda space allocated to separation of powers cases is in part driven by political developments outside the court and in part by the judicial philosophy of justices on the Court. An examination of the conflicts addressed by the court and the way in which they have been resolved suggests a hierarchy of institutional “winners” and “losers” where the courts and the needs of the judicial process trump both Congressional and Executive assertions of power.

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: The origins of American judicial supremacy can be found in a sharp increase of state court activism during the antebellum era. The enabling condition for this leap forward in court authority was the development of intense sustained sustained party competition during the 1840s and 1850s. Parties empowered the courts as a hedge against electoral defeat and also created an environment where the courts could seize power on their own initiative. This period of judicial strength marked a departure from earlier eras when the courts frequently found themselves subject to attack. The growth of activism in the state courts also provided the crucial training ground for the later expansion of federal court power during the nineteenth and twentieth centuries.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: We compare the Marbury v. Madison decision to two analogous judgements by the Federal Court of India and the Supreme Court of India. We argue that all three cases provide evidence of the need for new courts to issue judgements that strengthen their

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Most constitutional theorists fail to consider adequately institutional reforms that would strengthen the position of elected officials relative to judges. Because they associate judicial review with judges� performing a valuable checking function, they assume that judicial authority must have some priority. These theorists, therefore, debate whether elected officials have authority to interpret the Constitution and do not consider seriously the argument for legislative supremacy. Indeed, people mistakenly assume that we would eliminate judicial review by assigning priority to legislative interpretations, when legislative supremacy, or what I will call legislative primacy, is in fact an alternative to judicial supremacy.
By focusing on the relative institutional position of judges and elected officials, the essay illustrates that judges would be in a position to check elected institutions, even in a regime that allowed legislators to override judicial interpretations of constitutional law. This perspective also reveals that the Judiciary�s institutional position is a source of instability in the current regime, a regime that assigns priority to neither judicial nor legislative interpretations. .

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: Through his "Dred Scott" and other speeches, Abraham Lincoln defends a more robust place for the executive and legislative branches in interpreting the Constitution and places serious conditions on accepting the Supreme Court's rulings.