The Supreme Court 1995 Term Foreword: Leaving Things Undecided

Does the U.S. Constitution Need an Equal Rights Amendment?

“…Data derived from the United States Supreme Court Judicial Database (Spaeth 1999)-showing that the party alleging sex discrimination prevailed in just slightly more than a majority of the 23 post-1976 suits (60 percent)-tend to support this belief, as do doctrinal analyses of Court decisions. In United States v. Virginia (518 U.S. 515 [1996]), the federal government invited the justices to apply strict scrutiny to sex-based classifications-an invitation that many scholars (for example, Dorf 2002;Sunstein 1996), along with Justice Scalia, say the majority nearly accepted when it attempted to ratchet up the intermediate-scrutiny standard to strike down Virginia Military Institute's all-male admissions policy. Just 5 years later, in Nguyen v. INS (533 U.S. 53), however, the Court upheld a federal law that privileges a mother over a father in citizenship proceedings.…”

Constitutional Skepticism: A Recovery and Preliminary Evaluation

“…431 Cass Sunstein has defended a "judicial minimalism" grounded in a deep distrust of constitutional litigation as a means of achieving broad scale social justice. 432 In short, reports of the death of constitutional skepticism are greatly exaggerated. Of course, every generation refashions skeptical arguments to suit its own needs, just as every generation has its own version of constitutionalism.…”

Perfectionism in European Law

“…40 in a way that establishes broad rules for the future and that also gives deep theoretical justifications for outcomes'. 46 In Radicals in Robes, this binary opposition of minimalism and maximalism evolves into a quadriptych of fundamentalism, minimalism, majoritarianism and perfectionism. 47 For fundamentalists, constitutional interpretation 'requires an act of rediscovery.…”