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Always imperfectly achieved rule of law: Comments on Jeremy Waldron
Published online by Cambridge University Press: 15 April 2021
Abstract
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.
- Type
- Special Issue: Judicial Authority, Legitimacy and the (International) Rule of Law
- Information
- Copyright
- © The Author(s), 2021. Published by Cambridge University Press
References
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
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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>.
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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).
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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).