What Does the Supreme Court Do?

What Does the Supreme Court Do?, in U.S. CONSTITUTIONAL LAW IN THE OBAMA ERA: A TRANSATLANTIC PERSPECTIVE (Anna-Bettina Kaiser, Niels Petersen & Johannes Saurer, eds., Routledge, 2017 Forthcoming)

NYU School of Law, Public Law Research Paper No. 17-36

20 Pages Posted: 22 Sep 2017

Date Written: September 1, 2017

Abstract

This chapter is from a pre-election conference at Humboldt University on, “Obama’s Court: Recent Changes in U.S. Constitutional Law in Transatlantic Perspective.” Presented for a European audience, this chapter advances three arguments to challenge the easy perception that the main work of the U.S. Supreme Court consists of highly freighted social rights opinions, typically yielding 5-4 outcomes. First, data on Supreme Court decisions reveals first the small number of telltale 5-4 decisions, amid a much larger number of unanimous decisions in decided cases, and a striking paucity of dissents about which cases to take in the first place. Second, in examining the issues of abortion, capital punishment and marriage equality, the chapter suggests that in terms of the actual availability of abortion, the prevalence of the death penalty, and the acceptance of same-sex marriage, the decisions of the Court may be less consequential than political activists depict. Finally, the chapter looks away from the social rights jurisprudence to the importance of the judiciary as a brake on unilateral executive action in an era marked by lack of legislative initiatives and a marked temptation for the executive to go it alone. The argument is not that the social rights cases do not matter, simply a suggestion that they may obscure the significant work of the Court in maintaining restrained presidential command – even before the present dislocations of proper governance.

Suggested Citation

Issacharoff, Samuel, What Does the Supreme Court Do? (September 1, 2017). What Does the Supreme Court Do?, in U.S. CONSTITUTIONAL LAW IN THE OBAMA ERA: A TRANSATLANTIC PERSPECTIVE (Anna-Bettina Kaiser, Niels Petersen & Johannes Saurer, eds., Routledge, 2017 Forthcoming), NYU School of Law, Public Law Research Paper No. 17-36, Available at SSRN: https://ssrn.com/abstract=3040308

Samuel Issacharoff (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6580 (Phone)
212-995-3150 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
91
Abstract Views
608
Rank
509,542
PlumX Metrics