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Published online by Cambridge University Press: 15 April 2021
This commentary on Jeremy Waldron’s essay, ‘The Rule of Law and the Role of Courts’, applies a holistic perspective on the rule of law and judging situated within a broader complex of surrounding social, cultural, economic and political factors and institutions.
1 Waldron, J, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346.CrossRefGoogle Scholar
2 J Waldron, ‘The Rule of Law and the Role of Courts’ (in this issue).
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 For a concise discussion, see Tamanaha, BZ, ‘The History and Elements of the Rule of Law’ (2012) Singapore Journal of Legal Studies 232Google Scholar; Tamanaha, BZ, On the Rule of Law: History, Politics, Theory (Cambridge University Press, Cambridge, 2004)CrossRefGoogle Scholar. For a different view regarding the substantial content of the rule of law, see in this issue A Follesdal, ‘International Human Rights Courts and the (International) Rule of Law: Part of the Solution, Part of the Problem, or Both?’ (in this issue); G Palombella, ‘Non-Arbitrariness, Rule of Law and the “Margin of Appreciation”: Comments on Andreas Follesdal’ (in this issue).
9 For an analysis regarding the previous administration, see D Matthews, ‘The Senate is Undemocratic and it Matters’, Vox, 6 January 2015, available at: <http://www.vox.com/2015/1/6/7500935/trende-senate-vote-share>.
10 In a recent election in Wisconsin, for example, Republicans received 48.6 per cent of the vote overall, but won 60 of the 99 seats in the state legislature: see M Li and T Wolf, ‘5 Things to Know About the Wisconsin Partisan Gerrymandering Case’, 19 June 2017, Brennan Center, available at <https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case>.
11 D Markovits and I Ayres, ‘The US is in a State of Perpetual Minority Rule’, Washington Post, 8 November 2018, available at <https://www.washingtonpost.com/opinions/the-us-is-in-a-state-of-perpetual-minority-rule/2018/11/08/9f9f38a0-e2b1-11e8-8f5f-a55347f48762_story.html>.
12 Keck, TM, Judicial Politics in Polarized Times (The University of Chicago Press, Chicago, 2014) 186CrossRefGoogle Scholar. Lower courts also exercise judicial review, but my focus in this piece is on the Supreme Court because it reviews all decisions that invalidate legislation.
13 Ibid 198–99.
14 See Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Strauss & Giroux, New York, 2009).Google Scholar
15 On the public sphere and judicial dialogues, see K Traisbach, ‘A Transnational Judicial Public Sphere as an Idea and Ideology: Critical Reflections on Judicial Dialogue and its Legitimizing Potential’ (in this issue); F Kratochwil, ‘Law as an Argumentative Practice: On the Pitfalls of Confirmatory Research, False Necessities, and (Kantian) Stupidity – Comments on Knut Traisbach’ (in this issue).
16 See Burns, JM, Packing the Court (Penguin, New York, 2009).Google Scholar
17 See Tamanaha, BZ, ‘Instrumentalism and the Judiciary’, in Law as a Means to an End (Cambridge University Press, New York, 2006) 172–89.CrossRefGoogle Scholar
18 Quoted in Waldron (in this issue).
19 Ibid.
20 Ibid; on the idea of a constitutionalization of the ECtHR and the transnationalization of the separation of powers, see G Ulfstein, ‘Transnational Constitutional Aspects of the European Court of Human Rights’ (in this issue); W Sadurski, ‘Quasi-Constitutional Court of Human Rights for Europe? Comments on Geir Ulfstein’ (in this issue).
21 Waldron (in this issue).
22 Ibid.
23 Ibid.
24 An account of law as a matter of distributed institutions integrated within society is provided in Tamanaha, BZ, A Realistic Theory of Law (Cambridge University Press, Cambridge, 2017) 77–98.CrossRefGoogle Scholar
25 See R Harrington, G Panetta and N Einbinder, ‘23 Ways Anti-Abortion Activists are Attempting to Erode Roe v. Wade Without Repealing It’, Business Insider, 15 May 2019, available at <https://www.businessinsider.com/state-abortion-laws-reoding-roe-v-wade-reproductive-rights-2018-7>.
26 See Report on the Investigation into Russian Interference in the 2016 Presidential Election, Vol. II, Washington, DC, March 2019, available at <https://www.justice.gov/storage/report.pdf>.
27 See Hart, HLA, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593.CrossRefGoogle Scholar
28 It is conceivable that algorithms will one day be utilized to render legal decisions, though whether this can wholly replace human participation remains to be seen.
29 Waldron (in this issue).
30 See Scalia, A, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849.Google Scholar
31 See Solum, LB, ‘Originalism and Constitutional Construction’ (2013) 82 Fordham Law Review 453Google Scholar; Whittington, KE, ‘Originalism: A Critical Introduction’ (2013) 82 Fordham Law Review 375.Google Scholar
32 Howard, RM and Segal, JA, ‘An Original Look at Originalism’ (2002) 36 Law & Society Review 113.CrossRefGoogle Scholar
33 Whittington, KE, ‘Is Originalism Too Conservative?’ (2011) 34 Harvard Journal of Law & Public Policy 29.Google Scholar
34 Balkin, JM, Living Originalism (The Belknap Press, Cambridge, MA, 2014).Google Scholar
35 Waldron (in this issue).