Regulatory RightsSupreme Court Activism, the Public Interest, and the Making of Constitutional Law

Regulatory RightsSupreme Court Activism, the Public Interest, and the Making of Constitutional Law

Larry Yackle

Print publication date: 2013

ISBN: 9780226944715

Publisher: University of Chicago Press

Abstract

We often hear—with particular frequency during recent Supreme Court nomination hearings—that justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. This book sets out to convince readers that such arguments fundamentally misconceive both the work that justices do and the character of the American Constitution in whose name they do it. It matters who sits on the Supreme Court, the author argues, precisely because justices do create individual constitutional rights. Traversing a range of Supreme Court decisions that established crucial precedents about racial discrimination, the death penalty, and sexual freedom, he contends that the rights we enjoy are neither more nor less than what the justices choose to make of them.