Megalomaniac justices

[Sanford Levinson]

Re the discussion below:

This is a good test for the Rosenberg thesis.  Although I usually agree
with Frank Cross's observations, I think that what may be misleading is the
practical meaning here of "check[ing] congressional power."  After all, the
ADA would not be passed by today's Congress, and Bush II is significantly
more conservative than his father.  So what the Court has done is to veto
an "Old Consciousness" law that precedes the sea-change of 1994.  To this
extent, what we see, as in Bush v. Gore, is the majority joining in an ever
closer alliance with the conservative wing of the Republican party that
came to power in 1994 and is determined to do whatever it can to make sure
that they are never supplanted by "liberals," whatever the wishes of the
electorate or anybody else. (From this perspective, Romer and Casey are
best analyzed as statements of personal opinion by O'Connor and Kennedy
that conservative Republicans should relax a bit with regard to
homosexuality and abortion.)

sandy

>On Thu, 22 Feb 2001, Frank Cross wrote:
>
>:Of course, I doubt that even megalomaniac justices would do very much
>:today to really check congressional power -- the 11th Amendment cases
>:are just the slightest of nibbles around the edges of congressional
>:power.
>
>I'm not sure I agree - the Court in _Garrett_ holds that Title I of the
>ADA is beyond the scope of Congress' authority under sec. 5 of the
>Fourteenth Amendment.  Under _Garrett_, Congress may only remediate actual
>constitutional violations, and apparently has no independent authority to
>interpret the articles it has the power to enforce.  And, although the
>Court pays lip service to the notion that Congress has broader authority,
>I think Justice Breyer is right when he says "the Court's analysis and
>ultimate conclusion deprive its declarations of practical significance."
>
>Patrick
>
>--
>Patrick Wiseman
>Professor of Law
>GSU College of Law
>404-651-2096
>