A Mere Machine: The Supreme Court, Congress, and American by Anna Harvey

By Anna Harvey

Introductory textbooks on American govt let us know that the perfect court docket is self sufficient from the elected branches and that autonomous courts larger shield rights than their extra deferential opposite numbers. yet are those evidence or myths?
 
In this groundbreaking new paintings, Anna Harvey reviews proof exhibiting that the superb courtroom is in reality terribly deferential to congressional personal tastes in its constitutional rulings. studying cross-national proof, Harvey additionally unearths that the rights protections we take pleasure in within the usa seem to be principally given that we don't have an self sufficient ideally suited court docket. in reality, we might most likely have even better protections for political and fiscal rights have been we to ban our federal courts from workout judicial overview altogether. Harvey’s findings recommend that constitutional designers will be clever to heed Thomas Jefferson’s recommendation to “let mercy be the nature of the law-giver, yet enable the pass judgement on be a trifling machine.”

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Sample text

The presence of judicial review made it easier for previously extended public goods to be rolled back during the second Rehnquist Court terms, relative to the likely outcomes that would have prevailed in the absence of judicial review. The Rehnquist Court thus may illustrate both the apparently positive effect of a democratically accountable court on rights protections and other public goods, relative to a democratically unaccountable court, and the apparently negative effect of judicial review on those public goods, relative to the absence of judicial review, even where that review is exercised by a democratically accountable court.

Maybe precisely because the mere existence of the Constitution’s checks on the judiciary are so effective, they are only infrequently used. And maybe we have incorrectly inferred that, because the elected branches only rarely exercise their powers to discipline federal judges, those judges must be free to decide cases independently of elected branch preferences. 50 These studies have virtually all led to the conclusion that the tools possessed by the elected branches to ensure the Court’s deference do not in fact produce that outcome.

Majoritarian legislators may be removed from office for having violated our civil rights and liberties. Our power to so relieve them of their positions gives them powerful incentives not to violate those freedoms. But what gives antimajoritarian judges incentives to protect those freedoms? Development economists studying judicial independence have suggested that independent judges may simply be relatively more protected from the pressures inducing legislators and executives to predate economic and political rights.

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