Presidential Commission on the Supreme Court of the United States
departmentalist view—that legislative and executive branch actors could act on their own interpretations of the Constitution in their respective spheres—seems to have been Hamilton’s view, in contrast to the views of the antifederalist writer Brutus, who suggested that the federal courts would have greater interpretative authority under the Constitution and opposed it on that ground. See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 245–52 (1994); The Federalist No. 78 (Alexander Hamilton); Essays of Brutus, No. XI, reprinted in 2 Herbert J. Storing, The Complete Anti-Federalist § 2.9.138–139 (1st ed. 1981).
- ↑ 5 U.S. (1 Cranch) 137, 177 (1803).
- ↑ See Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487, 503–05 (2018).
- ↑ See, e.g., Gonzales v. Carhart, 550 U.S. 124, 141–43 (2007) (discussing how, in enacting the Partial-Birth Abortion Ban Act of 2003, Congress “responded” to the Supreme Court’s decision in Stenberg v. Carhart, 530 U.S. 914 (2000), which invalidated a similar state law, and sought to tailor the federal law to avoid the errors the Court identified in the state analog); Dickerson v. United States, 530 U.S. 428, 431–38 (2000) (describing how Congress sought to override the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), but holding Congress was powerless to do so because the Court’s decision in Miranda announced a constitutional rule that Congress could not legislatively override); City of Boerne v. Flores, 521 U.S. 507, 511–12, 515 (1997) (invalidating the Religious Freedom Restoration Act of 1993, which “Congress enacted … in direct response to the Court’s decision” in Employment Division v. Smith, 494 U.S. 872 (1990)); see also Barry Cushman, NFIB v. Sebelius and the Transformation of the Taxing Power, 89 Notre Dame L. Rev. 133, 142–43 (2013) (recounting how in an effort to combat child labor Congress passed the Keating–Owen Act, which the Supreme Court ruled unconstitutional in Hammer v. Dagenhart, 247 U.S. 251 (1918), and that when Congress subsequently “responded” to that decision “by adding a provision to the Revenue Act of 1918” that taxed businesses employing children “in violation of any of the standards established by the Keating–Owen Act,” the Supreme Court in turn invalidated that tax in Bailey v. Drexel Furniture, 259 U.S. 20 (1922)).
- ↑ Progressive Party Platform of 1924, Am. Presidency Project (Nov. 4, 1924), https://www.presidency.ucsb.edu/documents/progressive-party-platform-1924.
- ↑ Senate Progressives vs. the Federal Courts, US Senate: Senate Stories (May 3, 2021), https://www.senate.gov/artandhistory/senate-stories/senate-progressives-vs-the-federal-courts.htm#6.
- ↑ Kurt T. Lash, The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal, 70 Fordham L. Rev. 459, 476–77 n.87 (2001) (citing S.J. Res. 80, 75th Cong. (1937)). See generally 81 Cong. Rec. 1273 (1937), https://www.govinfo.gov/content/pkg/GPO-CRECB-1937-pt2-v81/pdf/GPO-CRECB-1937-pt2-v81-3.pdf (noting Senators Wheeler and Bone’s introduction of the proposed amendment).
- ↑ Marian C. McKenna, Prelude to Tyranny: Wheeler, F.D.R., and the 1937 Court Fight, 62 Pac. Hist. Rev. 405, 405 (1993).
- ↑ See William Lasser, Justice Roberts and the Constitutional Revolution of 1937—Was there a “Switch in Time”?, 78 Tex. L. Rev. 1347, 1372 (2000) (citing Memorandum from Benjamin V. Cohen & Thomas G. Corcoran on Constitutional Problems, Cohen Papers, Library of Congress, https://www.loc.gov/item/mm83061590) (reviewing Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998)).
- ↑ Robert H. Bork, Our Judicial Oligarchy, First Things (Nov. 1996).
- ↑ E.g., Doerfler & Moyn, supra note 2; Stephanopoulos, supra note 135, at 264–69, 290–92.
- ↑ Alicia Bannon & Nathan Sobel, Assaults on the Courts: A Legislative Round-Up, Brennan Ctr. (May 8, 2017), https://www.brennancenter.org/our-work/research-reports/assaults-courts-legislative-round.
- ↑ See Bowie Testimony, supra note 2, at 23; see also William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1129–30 (1989) (noting that courts played a proactive role in fashioning an economic system that was hostile to workers during the Gilded Age).
- ↑ Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (1st ed. 2008); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in
December 2021 | 199
