New York University Public Law and Legal Theory Working Papers

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This chapter is from a pre-election conference at Humboldt University on, “Obama’s Court: Recent Changes in U.S. Constitutional Law in Transatlantic Perspective.” Presented for a European audience, this chapter advances three arguments to challenge the easy perception that the main work of the U.S. Supreme Court consists of highly freighted social rights opinions, typically yielding 5-4 outcomes. First, data on Supreme Court decisions reveals first the small number of telltale 5-4 decisions, amid a much larger number of unanimous decisions in decided cases, and a striking paucity of dissents about which cases to take in the first place. Second, in examining the issues of abortion, capital punishment and marriage equality, the chapter suggests that in terms of the actual availability of abortion, the prevalence of the death penalty, and the acceptance of same-sex marriage, the decisions of the Court may be less consequential than political activists depict. Finally, the chapter looks away from the social rights jurisprudence to the importance of the judiciary as a brake on unilateral executive action in an era marked by lack of legislative initiatives and a marked temptation for the executive to go it alone. The argument is not that the social rights cases do not matter, simply a suggestion that they may obscure the significant work of the Court in maintaining restrained presidential command – even before the present dislocations of proper governance.

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