Judicial craftsmanship at the Supreme Court: A critical legal studies examination of Court crafts informing the hate speech debate.

摘要

Since Court justices are evaluated based on the quality of their crafts, chapter 1 identifies three elements of judicial craftsmanship: a conception of precedent (stare decisis), balancing interests and values, and a conception of democracy. Chapter 2 examines this model to determine how its different elements are interdependent. As the modern hate speech debate was considered 'settled' by the Court's crafts in the 1992 case R.A.V ., the remaining chapters examine the crafts of the authors of the two main opinions in R.A.V.: Justices Byron White and Antonin Scalia.; Chapter 3 outlines and criticizes the craftsmanship of White. To better understand his method of legal reasoning and to test the scope of the craft model, White's opinion in Bowers is examined.; Chapters 3 and 4 also examine the claim that White, or any Court justice, can and should advocate for certain political positions in his or her craft. These chapters assert that, in one sense or another, all Court justices are activists for certain political constituencies. Assuming that law is politics by other means, chapter 4 clarifies the dissertation's methodological commitment to one school of legal thought, Critical Legal Studies (CLS). Chapter 4 emphasizes that all crafts not only serve certain political constituencies, but in the ways they invoke precedents and balance interests and values each craft is complex and contradictory---and relies on extra-constitutional interests and values to respond to such problems. Since they all face comparable problems, crafts should not just be evaluated based on 'overcoming' such problems. Instead, all crafts should be evaluated according to more broadly democratic goals. In particular, crafts should not marginalize and subordinate social outsiders but instead empower them to share control over the conditions of our collective existence.; Chapter 5 next identifies and examines the judicial craftsmanship of Justice Antonin Scalia in general, and chapter 6 examines and compares Scalia's craft in R.A.V. to White's. The dissertation concludes Scalia's R.A.V. craft is undemocratic, and that case must be overturned, to better advance the interests of minority-race students targeted by hate speech. Only then will colleges feel freer to regulate campus hate speech.