Vol. 130 No. 5 Judges and constitutional theorists have long debated the best means of understanding constitutional rights. Two paradigms borrowed from philosophy can help make sense of...
Vol. 124 No. 5 The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance.
Vol. 124 No. 2 In this commencement address, Justice Souter outlines an approach to constitutional interpretation. The reasons that constitutional judging is not a mere combination of fair reading and simple facts, he states, extend beyond the recognition that constitutions must have a great deal of general language in order to be useful over long stretches of time. One such reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.
