Co-Conveners:  

• Susanna Mancini, Professor of Comparative Constitutional Law, The University of Bologna Law School; Visiting Professor Cardozo School of Law.
• Michel Rosenfeld, University Professor of Law and Comparative Democracy, Cardozo School of Law. 

Colloquium Description:

The US Supreme Court is currently experiencing a significant decrease in public approval, as are several courts in many other parts of the world, such as the Israel Supreme Court and top courts in various Eastern European countries. At the same time, in certain other parts of the world, such as Western Europe, constitutional courts persist as well integrated and are widely perceived as trustworthy guarantors of workable checks and balances. The Colloquium will explore what accounts for these differences and whether the various crises concerning judicial review arise from similar or different types of circumstances. To what extent are judicial appointment and length of highest court judges’ terms in office a significant factor in the exacerbation or avoidance of contemporary crises? What role do controversies in judicial interpretation, disputes concerning the nature and scope of fundamental rights protection, increased political polarization, the hardening of divides among proponents of religious lifestyles and those committed to secularism, the finality of judicial decisions, and the levels of difficulty in amending the relevant constitution play in the context of the proliferation and containment of the aforementioned issues? What options may be available to mitigate or resolve these difficulties?

Turning to specifics, public trust in the US Supreme Court has recently reached a historic low. This is due in part to what many perceive as undue political manipulation of nominations to Court vacancies and to reversals of jurisprudence characterized by dissenting justices and various commentators as unprincipled and purely political. The most notorious case in point is the Court’s 2022 decision in the Dobbs case which overruled a half century of precedents dating back to the 1973 decision in Roe v. Wade, which first recognized a constitutional right to an abortion. Was the overruling in question a constitutionally sound correction regarding a most divisive right? And if so, the Court’s decision though politically divisive would represent a prime example of judicial independence and integrity. Or was the Dobbs decision an exercise in raw political power by a recently consolidated anti-abortion Court majority? And if the latter, what remedy may be appropriate? Court packing? Judicial term limits? Also, is the reversal of Roe politically and constitutionally different in kind than that of Lochner in the 1930’s when President Roosevelt instituted the New Deal to overcome the evils of the Great Depression? 

The parliamentary initiative in Israel to greatly limit that country’s Supreme Court’s constitutional review jurisdiction has profoundly divided the citizenry and appears to have politically entrenched overtones that bear some degree of similarity with the recent polarization in the US. On the other hand, however, the Israeli controversy markedly differs from its US counterpart. Israel does not have a written constitution and its political fault lines are to an important extent sui generis. Still further afield, at least as a matter of first impression, are the dismantling of liberal courts in Hungary and Poland and their replacement by reconstituted tribunals populated by close allies to the populist and illiberal dominant parliamentary majorities. Are these experiences in Eastern European in any way comparable to the US and Israeli experiences? What are the prospects for change in Poland where the dominant illiberal political party has been defeated by a liberal coalition in the most recent parliamentary election? How do all the above instances stack up against much less conflictual judiciaries in Western Europe? And what further insights can be drawn from judicial review systems in place in other parts of the world? 

For information on readings, click here.

Colloquium Speakers:

January 25, 2024: Professor Daniel Bonilla, Universidad de los Andes, Colombia, and 2023-2024 Visiting Professor, Yale Law School (will discuss highest courts in the Global South and focus on Colombia, India, and South Africa).

February 8, 2024: Linda Greenhouse, Senior Research Scholar in Law at Yale Law School. Greenhouse covered the Supreme Court for nearly three decades for The New York Times. (OPEN TO ALL CARDOZO COMMUNITY MEMBERS) (THIS EVENT WILL TAKE PLACE IN THE JACOB BURNS MOOT COURT ROOM)

February 15, 2024: Professor  Reva Siegel, Yale Law School (will speak on Dobbs and against originalism). 

February 29, 2024: Professor Przemyslaw Tacik, the Institute of European Studies of the Jagiellonian University of Kraków, Poland (will discuss the compromising of judicial review during Poland’s illiberal populist experience 2015-2023 and the problem it poses to the newly elected liberal democratic government). 

March 7, 2024: Professor Francesco Biagi, The University of Bologna, Italy, Law School (will speak on Judicial Review changes due to the Arab Spring).

March 14, 2024: Professor John McGinnis, Northwestern University Law School (formerly our colleague at Cardozo) (will defend originalism and its justification of The Supreme Court’s overruling of precedent). 

March 28, 2024: Silvana Sciarra, President of Italian Constitutional Court until November 2023 (will focus on why there is no significant controversy or crisis of confidence regarding judicial review in her country).

April 11, 2024:  Professor Eleonora Bottini, University of Caen Law School in France (will discuss the role of the French Constitutional Council, the country’s highest constitutional tribunal, in disputed elections).

April 18, 2024: Professor Anna-Bettina Kaiser, Humbolt University Law School, Germany (will discuss legitimacy issues relating to the German Constitutional Court)

Justice Alex Stein, who was scheduled to speak on April 4, regrets that he will be unable to attend.

Only Cardozo students registered for the colloquium can attend.

All Cardozo faculty, staff and visiting scholars are welcome to attend the colloquium.

Faculty from neighboring universities are also welcome to attend, provided they RSVP with joshua.barzel@law.cardozo.yu.edu at least one business day before the first session they intend to attend.

Specify your name (first and last), school affiliation and the sessions you are interested in attending.

Please contact hui.yang@yu.edu and joshua.barzel@law.cardozo.yu.edu with any questions.