Judicial Review

January 4, 2019|Court-Packing, Free Speech, illiberal democracy, Judicial Review, Law and Justice Party, Liberal Democracy, Social Democracy, Victor Orban

Homegrown Varieties of Illiberal Democracy

by John O. McGinnis|3 Comments

Gdansk, Poland - September 22, 2018: Logo of Law and Justice (Robson90 / Shutterstock.com)

The condemnations of illiberal democracy are frequently shallow because they tend to assume rather than show the coherence of “liberal democracy.”

September 25, 2018|Citizen United, David Leonhardt, John Roberts, Judicial Review, Obamacare, Roberts Court, Same Sex Marriage, Term Limits

If the Supreme Court Is Simply Partisan, Eliminate Judical Review

by John O. McGinnis|10 Comments

U.S. Supreme Court chambers (stock_photo_world / Shutterstock.com).

If the Court is as partisan as David Leonhardt thinks, his remedies are useless or counterproductive.

August 17, 2018|Hans Linde, Judicial Review, Lochner v. New York, Supreme Court

How Judicial Review Improves the Legislative Process

by James R. Rogers|7 Comments

Detail image of U.S. Supreme Court building (Brandon Bourdages/Shutterstock.com).

We normally think of judicial review of legislation as a zero-sum game, but it has unseen benefits.

April 17, 2018|Judicial Review, Legislation, moral hazard

How Judicial Review Creates Incentives for Reckless Legislation

by James R. Rogers|10 Comments

Billionphotos.com/Adobe Stock Images

When legislators know that judicial review will save them from hard calls about the laws they vote on, no end of mischief follows.

April 16, 2018|auxiliary precautions, Federalist 51, James Madison, Judicial Review, moral hazard, Republican Virtue

When “Auxiliary Precautions” Undermine Republican Character

by James R. Rogers|15 Comments

Chambers of the South Carolina Supreme Court, December 10, 2014 (Nagel Photography/Shutterstock.com).

Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?

April 12, 2018|Administrative State, Chevron deference, John Locke, judicial activism, Judicial Review

Chevron Bias, Illustrated by Statistics

by Philip Hamburger|7 Comments

Chevron interferes with independent judicial judgment, and Christopher Walker calls it nonpartisanship.

December 27, 2017|Administrative State, Judicial Review

Limiting the Judicial Power of Agencies

by Mike Rappaport|6 Comments

In two prior posts (here and here), I have been discussing the ideas in my new paper, “Classical Liberal Administrative Law in a Progressive World.” This post continues the series by discussing how agency adjudication should be changed.

Under current arrangements, agencies often adjudicate cases that really should be adjudicated in Article III courts. Most of the time, these adjudications are called formal adjudications since they are accompanied by a formal hearing that provides significant procedural protections. The initial decision is made by an administrative law judge (ALJ) but, if the agency does not agree with the ALJ’s decision, the agency can appeal that decision to itself and reverse the ALJ. Thus, agency adjudications are ultimately controlled by the agency.

December 14, 2017|Constitution, Judicial Review, Rule of Law, Separation of Powers

The Dance of Judges and Publics

by James R. Rogers|4 Comments

For the most part judges serve as a critical link in the ordinary flow of administration.

November 6, 2017|judicial deference, judicial engagement, Judicial Review

The Dangers of an Engaged Judiciary

by James R. Rogers|6 Comments

The puzzle is why judges review the constitutionality of (some) laws deferentially. Last week I considered one of the most often provided reasons for deference, that the judges are “unelected,” and so, in a republican political system, should be careful when striking down the enactments of popularly elected legislators. Yet in the American constitutional system, national-level courts are fully republican institutions. They are immunized from direct electoral supervision to make them and the system more republican, not less republican. They are selected by the people’s representatives, and serve only during “good behavior.” This makes courts republican institutions according to the “rigid definition” that James Madison provides in Federalist No. 39. So, too, at the state level, many judges are elected directly, or at least undergo retention elections. It’s hard to maintain at either the state or national level that the judiciary is a non-republican branch of government.