“Preventing an Appeal to the Sword:” The Role of the Judiciary in American Federalism and European Integration
The article explores and compares the role of the judiciary in US constitutionalism and European integration. The development of these two legal orders has raised very similar constitutional problems and the purpose of the inquiry is to highlight the similar legal solutions devised by the US Supreme Court and the European Court of Justice. Four aspects have been singled out to show the importance of constitutional adjudication by courts in both experiences: the foundations of judicial review, supremacy of federal/Community law over state legislation, the protection of fundamental rights, and the dialogue among constitutional courts.
ON LISTENING TO THE KULTURKAMPF, OR, HOW AMERICA OVERRULED BOWERS V. HARDWICK, EVEN THOUGH ROMER V. EVANS DIDN’T
Is Bowers v. Hardwick still good law? It’s been fourteen years since the decision upholding Georgia’s sodomy law knocked the wind out of the gay rights movement and signaled an end to the expansion of the Supreme Court’s substantive due process jurisprudence. Fourteen years, and much has changed: a largely different Court; a subsequent “gay rights case,” Romer v. Evans; but also an exponential rise in openly gay television characters, Hollywood celebrities, and politicians; a widespread extension by corporations of family benefits to gay and lesbian domestic partners; and unprecedented public debate on gay marriage, gays in the military, gays at the office, gays just about everywhere. Is the old, quaint reasoning of Bowers still the law of the land? Upon close reading, I think it is impossible to maintain that the 1996 decision of Romer v. Evans, which voided as unconstitutional a Colorado state constitutional amendment banning gay rights ordinances, overruled Bowers. Different in tone, Romer never mentioned Bowers, the cases rest on different grounds (Romer on the Equal Protection Clause, Bowers on the Due Process Clause), and the laws at
The administration of the courts
Section 28 of Article VI of the State Constitution provides that the Chief Judge of the Court of Appeals is the Chief Judge of the State and its chief judicial officer. The Chief Judge appoints a Chief Administrator of the Courts (or Chief Administrative Judge of the Courts if the appointee is a judge) with the advice and consent of the Administrative Board of the Courts. The Administrative Board consists of the Chief Judge as chair and the Presiding Justices of the four Appellate Divisions of the Supreme Court. The Chief Judge establishes statewide administrative standards and policies after consultation with the Administrative Board and approval by the Court of Appeals.