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The debate over ‘judicial activism’ has flourished in recent decades, but the term was in fact coined 70 years ago, by the historian Arthur Schlesinger, Jr. The legal academy has bemoaned the term as perpetually ill-defined, but can this be attributed to its equivocal beginnings on the pages of Fortune magazine? This chapter investigates the circumstances in which the term was produced and the early meanings given to it in scholarly work. It is argued that there was very little effort on the part of legal academics and political scientists to gather a consensus as to definition, or otherwise to treat the terminology with caution, before the term was wrested from the university cloisters and captured by the popular media in the mid-1960s.

This chapter examines changes in the kinds of American legal issues that have attracted international attention since the end of the Cold War and looks at the extent to which they have resulted in higher levels or new forms of foreign participation and interest in Supreme Court cases. Suggesting that these changes may have an impact, at least indirectly, on the Court in ways not adequately explored in the existing literature, it considers their possible effects on its decisions and the way that the justices consider their role within increasingly globalized legal networks.

This article examines the four primary discourses of judging that dominate discussion of the European Court of Justice (ECJ) and its role in the process of European integration. These discourses present sharply contrasting views of what the Court does and what role it plays in the EU's legal system. The article argues that these conflicting discourses are not merely rival depictions of the ECJ, but that they have also influenced the process of European legal integration – and not always in the ways those voicing them intended.

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the constitutional enterprise as they create and refashion the Constitution by “majoritarian and populist mechanisms” (Amar, 1995, p. 89). The result is to recover an understanding, in FDR's words, of constitution as a “layman's document, not a lawyer's contract” (Kramer, 2004, p. 207). This understanding has deep roots in American constitutionalism, tracing its lineage back to the founding and, as popular constitutionalists insist, finds powerful expression in the likes of The Federalist and Abraham Lincoln (Ackerman, 1991; Tushnet, 1998). In exercising popular sovereignty, the people founded the Constitution, but they did not simply retreat from the trajectory of constitutional development. Rather, as Bruce Ackerman argues, since the Constitution of 1787 the people have spoken in a manner that has re-founded the Constitution giving us a “multiple origins originalism” (Kersch, 2006a, p. 801; see also Amar, 1998 and 2005). In turning to founding era thought and the notion of constitutional foundations, popular constitutionalists like Ackerman and Amar make common cause with conservatives who turn to original intent, but then they seek to synthesize this understanding with democratic expressions of popular will by emphasizing both formal and informal constitutional change, giving us layered “foundings,” and a more complex version of “living constitutionalism.” Such constitutional change, however, can only legitimately come from an authentic expression of “We the People.”

Within the legal mobilization framework, sociolegal scholars identify elite support as a key indirect benefit of litigation. Court-centered strategies generate support from influential state and private actors, and this support helps a movement to achieve its goals. Instead of assuming elite support to be a decidedly positive step in a movement’s trajectory, a more contextual analysis situates elite support as a complex, dynamic factor that movement advocates attempt to manage. Such support may at times create political and legal risks that jeopardize a movement's progress. My analysis of the marriage equality movement suggests a tentative typology with which to approach elite support: Elite support appears generally productive for a movement when it leads to action consistent with the movement's strategy. On the other hand, elite support may pose significant risk when it prompts action inconsistent with the movement's strategic plan, even if it is consistent with the movement's substantive positions.

Purpose – Role-taking refusal was a foundational problem in Mead's work but was ignored by subsequent interactionists who focused on the benefits of role-taking – empathy and solidarity – but failed to examine how they are destroyed or crippled from emerging as inclusionary aspects of social consciousness. Role-taking refusal constitutes both the microfoundation of dehumanization in the case of the oppressor and, in the case of the oppressed, the microfoundation of resistance. Role-taking refusal is linked to Giddens's notion of the reflective project of the self, Omi and Winant's racial formation theory, Feagin's theory of systemic racism, and the perspective of Critical Race Theory.

Methodology – I shall portray role-taking refusal by using historical, theoretical, and empirical works, especially ethnographic studies.

Social implications – The oppressed know the image their oppressors have of them. Refusing to internalize this image is the first step – the microfoundation – of resistance. Role-taking refusal in the oppressed fosters critical consciousness, which, if solidarity with others is formed, can lead to collective action and, possibly, permanent institutional change.

Originality – “The superiority delusion” is the paradigmatic ideology of all oppressors, deployed to justify their power, privilege, and prestige. This delusion is maintained by the microfoundation of dehumanization, which is a systematic refusal to role-take from those over whom oppressors oppress. All other ideologies that justify oppression are derived from some form of “the superiority delusion,” identifying for the first time role-taking refusal as paradoxically both the original sin of social relations and the foundation of social resistance.

What does the Supreme Court talk about when it talks about itself? In addition to the debates over interpretive method and doctrine that fill their opinions, Supreme Court justices often discuss what it means to be “a Court” and how such an institution must function. Our chapter explores this specific form of judicial self-representation, examining the ways in which members of the Court define their own “Court-ness” in their decisions. We argue that the Court’s acts of autobiography simultaneously generate images of impartiality and partiality. The result is the public projection of a contradictory judicial persona.

Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. I argue that the presence of rights in American constitutional discourse exacerbates the counter-majoritarian nature of judicial review. We do better to recast the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. In doing so, I proffer a novel analysis of liberal theory's extant commitment to public reason, one that conceptualizes public reason as representing the scope of state power.

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that between hermeneutically open and hermeneutically closed theories. Closed theories seek resolution to constitutional conflict by employing methods of interpretation that are intuitively persuasive. Open theories deny that such methods are always available, and seek resolution of conflict through a combination of legal, political, and social means. The author argues that closed theories have failed to live up to their implicit promise of self-justification, and examines the practice of constitutional interpretation in Canada and Australia to support this view.