Preserving the Rule of Law in a Politically Polarized World

Despite its venerated place atop American law and politics, our written Constitution does not enumerate all of the rules and rights, principles and procedures that actually govern modern America. The document makes no explicit mention of cherished concepts like the separation of powers and the rule of law. On some issues, the plain meaning of the text misleads. For example, the text seems to say that the vice president presides over his own impeachment trial--but surely this cannot be right. As esteemed legal scholar Akhil Reed Amar explains in America's Unwritten Constitution, the solution to many constitutional puzzles lies not solely within the written document, but beyond it--in the vast trove of values, precedents, and practices that complement and complete the terse text.

In this original, far-reaching and timely book, Justice Stephen Breyer examines the work of SCOTUS in an increasingly interconnected world, a world in which all sorts of public and private activity--from the conduct of national security policy to the conduct of international trade--obliges the Court to consider and understand circumstances beyond America's borders. At a time when ordinary citizens may book international lodging directly through online sites like Airbnb, it has become clear that judicial awareness can no longer stop at the water's edge. To trace how foreign considerations have come to inform the thinking of the Court, Justice Breyer begins with that area of the law in which they have always figured prominently: national security in its Constitutional dimension--how should the Court balance this imperative with others, chiefly the protection of basic liberties, in its review of presidential and congressional actions? He goes on to show how the Court has also been obliged to determine the application of American law in international contexts in a great many more everyday matters, from copyright to domestic relations to the interpretation of international treaty obligations. What, for instance, is the geographical reach of an American statute concerning securities fraud or an antitrust law? While Americans must necessarily determine their own laws through democratic process, increasingly, the smooth operation of American law--and, by extension, the advancement of American interests and values--depends on its working in harmony with that of other jurisdictions. Justice Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall has drawn American jurists into the relatively new role of "constitutional diplomats," a little remarked but increasingly important job for them in this still changing world.

The Culture of Judicial Independence in a Globalised World is an academic continuation of the previous three volumes: Judicial Independence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (Brill/Nijhoff, 1985), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, edited by Professor Shimon Shetreet and Professor Christopher Forsyth (Brill/Nijhoff, 2012), and The Culture of Judicial Independence: Rule of Law and World Peace edited by Professor Shimon Shetreet (Brill/Nijhoff, 2014). This volume offers papers and studies by academics, judges and practitioners from many jurisdictions on judicial independence – both national and international.

If humanity cannot live with the dangers and responsibilities inherent in freedom, it will probably turn to authoritarianism. This is the central idea of Escape from Freedom, a landmark work by one of the most distinguished thinkers of our time, and a book that is as timely now as when first published in 1941. Few books have thrown such light upon the forces that shape modern society or penetrated so deeply into the causes of authoritarian systems. If the rise of democracy set some people free, at the same time it gave birth to a society in which the individual feels alienated and dehumanized. Using the insights of psychoanalysis as probing agents, Fromm's work analyzes the illness of contemporary civilization as witnessed by its willingness to submit to totalitarian rule.

Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting--reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them. As renowned legal scholar Jamal Greene argues, we need a different approach--and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders' original sin of racial discrimination--and subsequent missteps by the Supreme Court--did courts gain such outsized power over Americans' rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America's original vision of rights, while updating them to confront the challenges of the twenty-first century.

The liberty of expression has been fixed in the firmament of our social values since our nation's beginning--the United States was the first government to legalize free speech and a free press as fundamental rights. But when the British began colonizing the New World, any words, true or false, thought to disparage the government were judged as criminally subversive. So when in 1733 a small newspaper, the New-York Weekly Journal, printed scathing articles assailing the new British governor, William Cosby, as corrupt and abusive, colonial New York was scandalized. The paper's publisher, John Peter Zenger--only a front man for Cosby's adversaries, New York Supreme Court Chief Justice Lewis Morris and the shrewd attorney James Alexander--became the endeavor's courageous fall guy when Cosby brought the full force of his high office down upon it. Zenger faced a jury on August 4, 1735, in a proceeding matched in importance during the colonial period only by the Salem Witch Trials. In Indelible Ink, acclaimed social historian Richard Kluger re-creates in rich detail this dramatic clash of powerful antagonists that marked the beginning of press freedom in America. Here is an enduring lesson that resounds to this day on the vital importance of free public expression as the underpinning of democracy.

An independent judiciary is crucial for upholding the rule of law and for the protection of human rights in a democratic society. The Independence of Judges is an anthology, illustrating that there is still a need for further exploration and reflection on various aspects of the principle of judicial independence. The book presents 22 articles, written from different perspectives and analyses by judges, lawyers, public prosecutors, and scientists in the areas of law, social sciences, and media science. The book's contributions provide an overview of historical developments, as well as issues of current interest in developed countries and in countries in transition, regarding the independent judge. The Independence of Judges will be of interest for anyone concerned with democracy and democracy-building by upholding the rule of law.

The Framers of the American Constitution took special pains to ensure that the governing principles of the republic were insulated from the reach of simple majorities. Only super-majoritarian amendments could modify these fundamental constitutional dictates. The Framers established a judicial branch shielded from direct majoritarian political accountability to protect and enforce these constitutional limits. Paradoxically, only a counter-majoritarian judicial branch could ensure the continued vitality of our representational form of government. This important lesson of the paradox of American democracy has been challenged and often ignored by office holders and legal scholars. Judicial Independence and the American Constitution provocatively defends the centrality of these special protections of judicial independence. Martin H. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly protected by the Constitution from direct political accountability: the judicial branch. He uncovers how the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.

This is the first full biography of Justice Leah Ward Sears. In 1992 Sears became the first woman and youngest justice to sit on the Supreme Court of Georgia. In 2005 she became the first African American woman to serve as chief justice of any state supreme court in the country. This book explores her childhood in a career military family; her education; her early work as an attorney; her rise through Georgia's city, county, and state court systems; and her various pursuits after leaving the supreme court in 2009, when she transitioned into a life that was no less active or public. As the biography recounts Sears's life and career, it is filled with instances of how Sears made her own luck by demonstrating a sharpness of mind and sagacious insight, a capacity for grueling hard work, and a relentless drive to succeed. Sears also maintained a strict devotion to judicial independence and the rule of law, which led to decisions that would surprise conservatives and liberals alike, earned the friendship of figures as diverse as Ambassador Andrew Young and Justice Clarence Thomas, and solidified a reputation that would land her on the short list of replacements for two retiring U.S. Supreme Court justices.

In this collection Justice Ginsburg discusses gender equality, the workings of the Supreme Court, being Jewish, law and lawyers in opera, and the value of looking beyond US shores when interpreting the US Constitution. Throughout her life Justice Ginsburg has been (and continues to be) a prolific writer and public speaker. This book's sampling is selected by Justice Ginsburg and her authorized biographers Mary Hartnett and Wendy W. Williams, who introduce each chapter and provide biographical context and quotes gleaned from hundreds of interviews they have conducted. Witty, engaging, serious, and playful, My Own Words is a fascinating glimpse into the life of one of America's most influential women and "a tonic to the current national discourse" (The Washington Post).

Many continue to believe that the United States is a nation of political moderates. In fact, it is a nation divided. It has been so for some time and has grown more so. This book provides a new and historically grounded perspective on the polarization of America, systematically documenting how and why it happened. Polarized presents commonsense benchmarks to measure polarization, draws data from a wide range of historical sources, and carefully assesses the quality of the evidence. Through an innovative and insightful use of circumstantial evidence, it provides a much-needed reality check to claims about polarization. This rigorous yet engaging and accessible book examines how polarization displaced pluralism and how this affected American democracy and civil society. Polarized challenges the widely held belief that polarization is the product of party and media elites, revealing instead how the American public in the 1960s set in motion the increase of polarization.

From the sprawling remnants of the Soviet empire to the southern tip of Africa, attempts are underway to replace arbitrary political regimes with governments constrained by the rule of law. This ideal which subordinates the wills of individuals, social movements--and even, sometimes, democratically elected majorities--to the requirements of law, is here explored by leading legal and political thinkers. Part I of The Rule of Law examines the interplay of democracy and the rule of law, while Part II focusses on the centuries-old debate about the meaning of the rule of law itself. Part III takes up the constraints that rationality exercises on the rule of law. If the rule of law is desirable partly because it is rational, then departures from that rule might also be desirable in the event that they can be shown to be rational. Part IV concentrates on the limits of the rule of law, considering the tensions between liberalism and the rule of law which exist despite the fact that reasoned commitment to the rule of the law is preeminently a liberal commitment.

Perspectives on the rule of law internationally from William O. Douglas, who remains the longest serving associate justice on the United States Supreme Court, having held that position from 1939 until his retirement in 1975.

The Unheavenly Chorus is the most comprehensive and systematic examination of political voice in America ever undertaken--and its findings are sobering. The Unheavenly Chorus is the first book to look at the political participation of individual citizens alongside the political advocacy of thousands of organized interests--membership associations such as unions, professional associations, trade associations, and citizens groups, as well as organizations like corporations, hospitals, and universities. Drawing on numerous in-depth surveys of members of the public as well as the largest database of interest organizations ever created--representing more than thirty-five thousand organizations over a twenty-five-year period--this book conclusively demonstrates that American democracy is marred by deeply ingrained and persistent class-based political inequality. The well educated and affluent are active in many ways to make their voices heard, while the less advantaged are not. This book reveals how the political voices of organized interests are even less representative than those of individuals, how political advantage is handed down across generations, how recruitment to political activity perpetuates and exaggerates existing biases, how political voice on the Internet replicates these inequalities--and more. In a true democracy, the preferences and needs of all citizens deserve equal consideration. Yet equal consideration is only possible with equal citizen voice. The Unheavenly Chorus reveals how far we really are from the democratic ideal and how hard it would be to attain it.