ACSBlog: The Blog of the American Constitution Society

In a six part series of articles, Geoffrey R. Stone, professor of law at the University of Chicago Law School, analyzed how Supreme Court Justices decide "hard cases," explored what it means to be a "conservative" or "liberal" judge, and explained his vision of the proper mode of constitutional analysis, which he called "constitutionalism."

1. Supreme Imbalance – "The current Supreme Court is . . . an extremely conservative Court."
2. Of Liberals and Conservatives – What it means to be "'liberal' and 'conservative' in the context of the current Court."
3. Conservative Activism on the Supreme Court – "Justices Rehnquist, Scalia and Thomas have a rather odd view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes -- to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election."
4. Why Judicial Passivism is Wrong – "Judicial passivism – the approach that says courts should uphold all laws unless they are unconstitutional beyond a reasonable doubt . . . abdicates judicial responsibility and subverts a fundamental part of the genius of the American constitutional system."
5. Why Originalism and Conservative Activism Are Wrong – "Originalism . . . not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution." "Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities . . . to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful."
6. Of "Constitutionalism" – "The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world."