Faculty Publications

Provides the authoritative, practical guidance you need to ensure judicial activities are irreproachable.

This Article contends that in democracy cases, the judicial minimalists on the Court have actually engaged, during the decade, in extensive judicial fact-finding in order to justify their legal conclusions. In several of these cases the Court has shown a willingness to ignore the legislative fact-findings of Congress (reflected in the McCain-Feingold legislation struck down in both Citizens United and McCutcheon v. FEC and in the re-authorization of the Voting Rights Act in Shelby County); and of state courts and legislatures (reflected in American Tradition Partnership v. Bullock and Arizona Free Enterprise v. Bennett). Indeed, within the democracy arena, the Court has deferred to legislative fact-finding basically only when the fact-finding body was itself hostile to participatory democracy, and actually acted upon that hostility. Examples of this anti-participatory deference include the Husted voter purge, the Crawford v. Indiana decision in 2008 that, while technically outside the defined decade, spawned numerous carbon copy voter ID laws in states around the nation, and the deference to legislative redistricting measures that, in the instances of Maryland and North Carolina, are not only inconsistent with one-person, one-vote norms, but are openly and transparently acknowledged by their progenitors to be so.

The Article situates the analysis of Supreme Court disqualification practice, and particularly thecircumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes todisqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct.