The Supreme Court as a Babysitter: Modeling Zubik v. Burwell and Trump v. International Refugee Assistance Project Rights
30 Pages Posted: 28 Sep 2018
Date Written: September 10, 2018
The Article reveals for the first time the emergence in two recent Supreme Court decisions of an innovative adjudicative function in constitutional cases, which we suggest to call the “Babysitter Model.” According to this model, as implemented in Zubik v. Burwell and Trump v. International Refugee Assistance Project, the Supreme Court does not provide a well-founded resolution, but rather accompanies, attends, and encourages other branches to carry out their constitutional obligations. The case is ongoing until the dispute is resolved. The Article analyzes the reasons that motivated the Court’s dispositions of Zubik and Trump, presents the Babysitter Model and distinguishes it from other judicial review methodologies, and proposes an initial normative evaluation of the model.
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