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Fuentes-Rohwer & Durfee on Frankfurter & Brennan on Judicial Review & Politics

By Lawrence Solum

Luis E. Fuentes-Rohwer and Laura Jane Durfee (Indiana University-Bloomington, Maurer School of Law and Indiana University School of Law-Bloomington) have posted Leaving the Thicket at Last? (Michigan State Law Review, Vol. 417, 2009) on SSRN. Here is the abstract:

Across the spectrum of ideas debated within the law of democracy, the view is nearly unanimous that the Justices must lead the way toward a better democracy. And yet, as we argue in this Essay, the Court?s handling of the problems since its initial intervention in Baker v. Carr has been nothing short of a mess. Debates in this area offer modern instances of a Court that cares little about doctrinal consistency and judicial craftsmanship, of Justices that care less about compromise and common ground and more about expressing their deeply held views about politics, democracy, and the law. In response, we look back to the debate between Justices Brennan and Frankfurter over the wisdom of judicial intervention. And to our minds, this is a debate with a clear winner: to this day, Justice Frankfurter?s forceful argument has gone both unheeded and unanswered. The evidence is in, and so, after forty years of judicial review in the realm of politics, the question for the future should be whether judicial intervention in the realm of politics is worth the cost.

Full post as published by Legal Theory Blog on June 03, 2010 (boomark / email).