Race, the Supreme Court, and the Judicial-Institutional Interest in Stability
University of Oregon School of Law
November 6, 2010
Journal of Law (Law & Commentary), Vol. 1, p. 95, 2011
For anyone interested in understanding the historical development of American constitutional law, one crucial issue that must be addressed are the various factors that have historically driven judicial behavior. In this Article, I aim to shed light on one set of influences upon judicial behavior that prevailing scholarship tends to underemphasize: the historically-embedded institutional interests of the judiciary itself. In particular, I focus on the Supreme Court's institutional interest in promoting stability. I argue that this judicial-institutional interest consistently emerges in the aftermath of transformative reforms that dismantle social hierarchy, and that it stems from both the unusual political context of post-reform periods and the Court's peculiar commitment to promoting legality values. Finally, I offer historical support for the theory by examining the post-Reconstruction and the post-Civil Rights Era race cases.
Number of Pages in PDF File: 90
Keywords: Constitutional History, Constitutional Law, Race, Stability, Reconstruction, Civil Rights Era, Institutional Interests, American Political Development
Date posted: November 7, 2010 ; Last revised: June 18, 2011
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