Washburn Law Journal
Editor's Note
Volume 47, No. 1 (Fall 2007)
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In late 2005 and early 2006, significant changes occurred within the United States Supreme Court. The Court lost both Chief Justice Rehnquist and Justice Sandra Day O'Connor. As a result, President George W. Bush nominated John Roberts as Chief Justice and Samuel Alito as Associate Justice. Americans wondered how the conservative President's nominees would alter the direction of the Court. Would the new Court continue to uphold Roe v. Wade without one of its strongest advocates, Sandra Day O'Connor? Would Chief Justice Roberts be able to continue Rehnquist's practice of compromise and secure broad majority opinions? Professor Jeffrey Rosen explored some of these issues in the 2007 Foulston Siefkin Lecture at Washburn University School of Law. In his related article, The Supreme Court: Judicial Temperament and the Democratic Ideal, Professor Rosen explores two themes judicial temperament and the role of the Court in American democracy. Professor Rosen suggests that academic brilliance is not the key predicator of success on the Court, but instead it is the ability to compromise and to get along well with colleagues. Rosen also argues that the Court's role should be, as it most often has been, to refrain from acting "unilaterally." By this, he means the Court should reflect the popular majoritarian view of constitutional ideals instead of imposing its own view on America. He advocates that the Court needs a figure like Chief Justice John Marshall who "embodied the kind of judicial success and also the subtle and complicated relationship that defines the appropriate balance between judicial independence and democratic accountability."
Several articles in this issue respond to Professor Rosen's observations about the Court. In his article, The Three Rs: Rosen, Roberts, and Restraint, David J. Garrow explains that Rosen's argument regarding the Court's role leaves itself open to the "charge that only those constitutional provisions and guarantees that can garner contemporaneous popular endorsement merit any degree of judicial enforcement or protection." In False Modesty: Felix Frankfurter and the Tradition of Judicial Restraint, Professor Mark A. Graber explores judicial restraint through the legacy of Justice Frankfurter. Finally, in Measuring Judicial Success: Interpersonal Intelligence and Commitment to Enduring Values, Professor William J. Rich offers an alternative to Rosen's references to temperament. Professor Rich argues that successful Justices not only are social, but also have an ability to understand the desires and motivations of others, thus allowing them to work effectively with others. Professor Rich questions Rosen's observations that the most successful Justices are those that adhere to the majoritarian values.
Two articles in this issue depart from the topic of judicial temperament. First, in The "How" of Enforcing the Fourteenth Amendment: Why the Rehnquist Court's Treatment of Implementation, not Interpretation, is the True Post-Boerne Failing, Rebecca Goldberg addresses the decline of congressional power to enact civil rights legislation under Section Five of the Fourteenth Amendment ushered in by the Rehnquist Court. She challenges the conventional scholarship behind the reason for this decline, and highlights the important difference between congressional interpretation and Congressional implementation. She then formulates a doctrinal framework based on City of Boerne v. Flores, which courts can use to determine if Congress has the authority to pass legislation under Section Five of the Fourteenth Amendment. In the second article, "That's Unfair!" Says Who—The Government or the Litigant?: Consumer Protection Claims Involving Regulated Conduct, authors Victor E. Schwartz, Cary Silverman, and Christopher E. Appel argue that courts, when interpreting regulatory compliance provisions, should respect the expertise of government agencies that promulgated such regulations. The authors urge state legislatures to amend their consumer protection acts to include regulatory compliance provisions to avoid lawsuits that conflict with public policy.
This issue of the Washburn Law Journal concludes with several student-written articles discussing a variety of topics. In his note, FISA's Future: An Analysis of Electronic Surveillance in Light of the Special Needs Exception to the Fourth Amendment, Justin W. Whitney explores the constitutionality of the National Security Agency's Terrorist Surveillance Program under the Foreign Intelligence Surveillance Act (FISA). He proposes an alternative to the FISA analysis based on the special needs exception of the Fourth Amendment, and he offers a statistical forecasting model to measure whether surveillance is necessary. In his case comment, Samuel A. Green argues that by overlooking the medical effect contraception has on women and by failing to distinguish contraception from other gender-neutral issues, the United States Court of Appeals for the Eight Circuit erred when it failed to apply the Pregnancy Discrimination Act to insurance coverage that excludes contraception. In her case comment, Angela Chesney Herrington maintains that the Kansas Supreme Court, in a case of first impression that intersects family law and probate law, incorrectly applied the best interests of the child standard to an adult in an intestate claim where no true parent/child relationship needed the court's protection. Finally, Brent M. Johnston explores the amount of deference courts should extend to the Internal Revenue Service's position that a disregarded limited liability company's (LLC) owner is the "employer" of the LLC's employees and therefore must pay employment tax.
T.R.H.
