Five Constitutional Controversies, Five Judicial Opinions: The Theory Illustrated

A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Forthcoming, Cambridge University Press, 2017

Emory Legal Studies Research Paper No. 16-406

60 Pages Posted: 27 Apr 2016 Last revised: 12 May 2016

Date Written: April 25, 2016

Abstract

In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.

That is, Justice Nemo's five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?

Suggested Citation

Perry, Michael John, Five Constitutional Controversies, Five Judicial Opinions: The Theory Illustrated (April 25, 2016). A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Forthcoming, Cambridge University Press, 2017, Emory Legal Studies Research Paper No. 16-406, Available at SSRN: https://ssrn.com/abstract=2624980

Michael John Perry (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2086 (Phone)

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