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Representation rights and the Burger years
In Representation Rights and the Burger Years, political scientist Nancy Maveety tackles the constitutional meaning of fair and effective representation rights and evaluates the specific contributions that the Supreme Court made to this definition during the Burger era. The Court of Chief Justice Warren Burger has been described as one that made no distinctive jurisprudential contributions. It has been dismissed as a court overshadowed by both its predecessor and its successor. By contrast, Maveety argues that the Burger Court in fact revolutionized constitutional understandings of political representation, expanding, in particular, the judicial scrutiny of political institutions. Moving beyond the one person, one vote reapportionment initiated by the Warren Court, it opened the way for the articulation of group-based constitutional representation rights. This group-based approach to representation questions broadened groups' constitutional claims to equal political influence. Yet, as Maveety perceptively shows, this broader interpretation of representable interests was grounded in mainstream American conceptions of political representation. The great value of Maveety's study is the presentation of a typology of group representation, which explains and validates the Burger Court's work on representation rights. This typology, drawn from American history, political theory, and political practice, offers a new approach for evaluating the precedental record of the Burger years and a sophisticated framework for understanding the interaction between constitutional law and politics.
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How long a legacy?
On abortion, [Sandra Day O'Connor] was central to the preservation of the Roe v. Wade precedent. Roe and its progeny divided both the country and the Supreme Court into factions. O'Connor was initially critical of the decision, focusing on the rigidity of its formula that divided pregnancy into trimesters with precise rules for abortion rights at each stage. The 1992 ruling in Planned Parenthood v. Casey settled the matter, of both O'Connor's view and the court's. An unusual, jointly authored opinion by Justices O'Connor, Kennedy and Souter retained the essential holding of Roe, that a woman has a right to choose an abortion under certain circumstances, but used O'Connor's \"undue burden\" test to determine when a state regulation was unduly constraining that right by imposing too great a burden or obstacle to a woman's decision. Unfortunately, O'Connor's doctrinal language in Grutter, as well as in her other noteworthy affirmative action opinions, provided little more guidance than that. Its vagueness suggests that it is unlikely to survive O'Connor's tenure. The compromise hinges too much on her personal view of the facts; it cannot so easily be applied by another justice, and there is a good chance it will fall by the wayside after she's gone.
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