Jonathan Mitchell (George Mason University School of Law) has posted “Modernization, Moderation, and Political Minorities: A Response to Professor Strauss” on SSRN, see here. I have spent a bit of time searching for a recent manuscript of Professor Strauss’s article entitled “The Modernizing Mission of Judicial Review,” but have not been able to find one anywhere, including on SSRN. In any event, as described by Professor Mitchell, Professor Strauss seems to argue in his forthcoming article in the University of Chicago Law Review that the Supreme Court’s recent decisions in areas such as substantive due process, equal protection, and capital punishment all reflect a modernization of the law to better reflect popular opinion, rather than as actions to entrench the Justices’ ideological preferences. Professor Strauss’s position is intriguing because it runs counter to empirical research demonstrating that the ideology of Justices does play some role in Supreme Court decisionmaking. For his part, Professor Mitchell disputes Professor Strauss’s account of judicial decisionmaking and rejects a modernizing approach on normative grounds. As an example, Professor Mitchell argues that the Court’s post-Gregg jurisprudence is not an attempt to modernize the Court’s doctrine to accommodate public opinion, but rather reflects an effort to undermine the imposition of capital punishment through more subtle means. While it may be true that Gregg is representative of a popular backlash against the Court’s declaration in Furman v. Georgia, 408 U.S. 238 (1972) that the death penalty is unconstitutional, the Court’s later decisions that limit the imposition of the death penalty, such as Roper v. Simmons, 543 U.S. 551 (2005) and Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), are hardly consistent with a populace that supports the imposition of capital punishment overwhelmingly according to public opinion polls. Professor Mitchell also highlights the arguments against modernization, such as eroding the protections that the Constitution confers on political minorities. In any event, since this debate is interesting and seems to deviate from some of the mainstream arguments prevalent today about courts, I thought I would include it in this roundup.
UPDATE: Thanks to a note from a reader, here is what appears to be a recent version of the Strauss piece.
Dan Farber (University of California-Berkeley School of Law), who is a former law clerk to Justice Stevens, has posted “Justice Stevens, Habeas Jurisdiction, and the War on Terror” on SSRN, see here. In this paper, an earlier version of which was presented at a symposium at the University of California-Davis in 2006, Professor Farber examines the recent habeas jurisprudence from the Supreme Court in the War on Terror, focusing specifically on Rasul v. Bush, 542 U.S. 466 (2004), Padilla v. Rumsfeld, 542 U.S. 426 (2004), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Always provocative and interesting, Professor Farber contrasts the approaches of Justices Stevens and Scalia, who are probably the two most vocal Justices in these cases. What is particularly notable about this paper is that it tracks the dispute between Justices Scalia and Stevens back to INS v. St. Cyr, 533 U.S. 289 (2001), a pre-9/11 decision. There, the Court held that two jurisdiction-stripping statutes did not strip federal courts of habeas jurisdiction because there was no clear and unambiguous statutory directive to do so. In contrast, Justice Scalia said that a prohibition on “judicial review” included cases arising under the habeas jurisdiction of federal courts. Professor Farber argues that St. Cyr and particularly the position taken by Justice Kennedy in that case, presaged the decisions in cases that came after 9/11. In any case, Professor Farber’s manuscript is an interesting and “different” take on the recent habeas cases.