The Supreme Court as a Babysitter: Modeling Zubik v. Burwell and Trump v. International Refugee Assistance Project Rights

30 Pages Posted: 28 Sep 2018

See all articles by Ariel L. Bendor

Ariel L. Bendor

Bar-Ilan University - Faculty of Law

Joshua Segev

Netanya Academic College School of Law; Bar-Ilan University - Faculty of Law; University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Written: September 10, 2018

Abstract

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.

Suggested Citation

Bendor, Ariel L. and Segev, Joshua, The Supreme Court as a Babysitter: Modeling Zubik v. Burwell and Trump v. International Refugee Assistance Project Rights (September 10, 2018). 2018 MICH. ST. L. REV. 373 ; Bar Ilan University Faculty of Law Research Paper No. 18-21. Available at SSRN: https://ssrn.com/abstract=3246800

Ariel L. Bendor

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Joshua Segev (Contact Author)

Netanya Academic College School of Law ( email )

1 University St.
Netanya
Israel

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

University of Virginia - School of Law, Alumnus or Degree Candidate Author ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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