This thesis traces the growth the United States Senate's role in the Supreme Court confirmation process from the passage of the Judiciary Act of 1789 to the nomination of Robert H. Bork in 1987. Beginning with an examination of the intellectual origins of the Advice and Consent Clause of the United States Constitution, the thesis goes on to demonstrate that the Senate's role in the confirmation process has expanded well beyond the boundaries established by the Framers of the Constitution, and that this has resulted in a usurpation of the presidential power of appointment. The thesis concludes by arguing that the growth of the Senate's role in the confirmation process has harmed the integrity of the judicial branch by infringing upon the separation of powers, specifically demonstrating how the modern confirmation process has threatened to undermine the independence of the Judiciary.

Cette thèse s'inscrit dans un mouvement de reconnaissance de l'importance accrue de l'institution judiciaire, et de questionnement actuel sur la légitimité démocratique du juge. Dans ce cadre, elle enquête sur le rôle, dans la fonction et la pratique judiciaire, de l'opinion publique, largement considérée comme un élément de légitimité démocratique. Pour obtenir un éclairage plus complet sur cette question, une approche comparative est adoptée et appliquée à l'œuvre protectrice d'une cour nationale constitutionnelle et d'une cour internationale dans le domaine des droits et des libertés : la Cour suprême des États-Unis et la Cour européenne des droits de l'Homme. Le raisonnement suivi est le suivant. Au niveau théorique, il s'agit de clarifier le concept protéiforme d'«opinion publique» et d'établir les différentes sources de la légitimité judiciaire, afin de déterminer si l'opinion publique peut en faire partie. Au niveau procédural, l'étude se penche sur la pratique judiciaire des deux cours, les différentes règles et pratiques qui permettent d'impliquer directement ou indirectement le public dans le processus judiciaire, que ce soit les parties, les tierces-parties, ou les médias. On se penche enfin sur la substance des décisions de justice, qui révèlent la manière dont les juges conçoivent le rôle de l'opinion publique dans la démocratie et dans l'évolution judiciaire des droits et libertés. L'étude de la substance des décisions se concentre d'une part sur la relation entre opinion publique et démocratie dans la protection de la liberté d'expression, et d'autre part sur le rôle de l'opinion publique dans l'évolution des droits des personnes homosexuelles. / This dissertation is part of a larger movement, both national and international, acknowledging the growing importance and inquiring about the democratic legitimacy of judicial institutions. In looking at the judicial office and its practice, it investigates the role of public opinion, largely considered an element of democratic legitimacy. To obtain a more complete perspective on judicial institutions and public opinion, a comparative approach is adopted and the United States Supreme Court, and the European Court of Human Rights are examined. This study adopts the following reasoning. At a theoretical level, it attempts to clarify The multifaceted concept of “public opinion” and to establish the different sources of judicial legitimacy, in order to determine whether public opinion can be considered such a source. At a process level, the study inquiries about the judicial practice of both courts, and the different rules and practices that allow for a direct or indirect involvement of the public, whether parties, third-parties, or the media. It then studies the substance of judicial decisions, which reveal judges' conception of the role of public opinion in democracy and in the judicial evolution of rights and liberties. The content-study of judicial decisions focuses on first on the relationship between public opinion and democracy in the protection of freedom of expression and second on the rote of public opinion in the evolution of the rights of homosexual persons.

Society and institutions of government reinforce norms that constrain the behavior of individuals. Heteropatriarchal norms traditionally favor the perspective of white, male, heterosexual, reason, judicial restraint, and democratic authority over their binary, and minority, counterparts: black, female, homosexual, desire, judicial activism, and individual rights. According to the theory of Queer New Institutionalism, these dichotomous pairs are mutually dependent upon each other for definition and maintenance. The perpetuation of these binarisms is made through language, often assumed and unquestioned. However, the use of sexualized language and metaphors are identified in efforts to draw suspicion and consternation for these minoritized Others. When the presence of an Other is missing, those that would reinforce these norms being to skirt the line between the pairings, taking the position of the individual they would otherwise criticize. By utilizing critical discourse analysis, Supreme Court nomination hearings during the 109th and 111th Congresses were reviewed for support for the theory of Queer New Institutionalism. Senators and witnesses before the committee operated within the constraints of binary thinking and instances of sexualized and gendered language, as well as metaphors, were used to perpetuate these norms and link the nominees to the suspicion surrounding Others.

It is a well known fact that in recent years the United States Senate has increasingly become more critical of presidential appointments to the Supreme Court branch. In this thesis the author has undertaken an intensive study of the several cases between 1916 and 1930 in which, serious opposition developed to the confirmation of Supreme Court appointments. Within this period fall the unsuccessful fights against Justices Brandeis,Taft, Butler, Stone,and Hughes,and the successful opposition to Judge Parker. In each case an effort has been made to bring out the forces and arguments operative on either side of the controversy, and to establish the fundamental motivation underlying these several manifestations of senatorial discontent. The intensive study of this question has been limited to the period from 1916 to 1930. As a preliminary background, however chapter one has been devoted to a rapid survey of the confirmation struggles arising over Supreme Court appointments of the eighteenth and nineteenth centuries and in the concluding chapter, brief reference has been made to the subsequent record of Chief Justice Hughes, to illustrate the false premise upon which some of the struggles have been founded. In the concluding lines,the author has attempted to state what he believes to be the only justifiable grounds for future attacks upon presidential nominees to the Supreme Court of the United States.

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This study analyzes the confirmation hearings discourse of Clarence Thomas and George Bush. Language constructs social reality. The United States has a history of racism and this history manifests itself in our language. The discourse of Clarence Thomas and George Bush created a social reality that equated opposition to Thomas' confirmation with racism using rhetorical strategies that included metaphor and narrative construction.

This investigation is concerned with determining the impact of the United States Supreme Court's Rodriguez decision upon the state and federal courts. The first chapter discusses the background behind the 1973 decision and outlines the basic issues. The second chapter examines the decision's impact upon opinions in the federal courts and concludes that Rodriguez has become a significant precedent. While school finance reform is dormant in the federal tribunals as a result of the decision, the third chapter concludes that reform is still possible in the state courts. However, there has been a deceleration in the rate of cases overturning school funding statutes since 1973. The final chapter examines some of the state legislatures and concludes that statutory reform is not necessarily linked to action in the courts.

Following his election to the office of President of the United States, in 1932, Franklin D. Roosevelt began his attempt to overcome the economic difficulties caused by the depression of 1929. His program for recovery included the enactment by Congress of many new pieces of legistlation. A great amount of this legislation was ruled out by the Supreme Court as unconstitutional. Subsequently, the President on February 5, 1937, presented a proposal to alter the court system of the United States. This proposal brought forth a surge of public opinion throughout the nation. Sharp divisions of opinion occurred concerning the merits of the President's suggested reform The purpose of this study to dermine, (1) the reactions of the electorate to the proposal; (2) the reactions of the various agencies of public opinion; (3) wheather these agency reactions were cuases or effects of public feeling; (4) the importance of public opinion in such a matter.

For the last half-century, American politics has been ravaged by a war for control of the courts. While conflict between the courts of law and the elected branches of government has been a recurrent theme in American history, this conflict has taken on a heightened importance beginning with the rights revolution ushered in by the Warren Court. Judicial originalism was born as part of a backlash against Warren and Burger Court expansions of constitutional rights in areas as disparate as First Amendment protections for individual speech and the expansion of substantive due process to cover contraception and abortion. By the end of the Trump Administration, the judicial backlash against this expansion of constitutionalized rights appears to have gained the upper hand as the Supreme Court and lower courts of appeals, especially the Fifth Circuit, have begun a substantial counteroffensive. Roe v. Wade has been overturned, a longstanding goal of legal conservatives, and the groundwork has been set for a rollback of the federal administrative state, which has often seen by legal conservatives as a political foe. This dissertation discusses the theoretical underpinnings of contemporary conservative jurisprudence, with a particular focus on the formalistic interpretive methodologies of originalism and textualism. It argues that textualism, at least as advanced by Justices Scalia and Gorsuch, is philosophically confused, and it argues that originalism is insufficient to its purported task of weakening the judiciary through a limitation of judicial discretion. Because legal conservatives often defend their views as a natural outgrowth of a commonsense picture of political morality, grounded in the concepts of the rule of law, democracy, and the separation of powers, I also discuss the interplay between those concepts within legal conservative discourse. Contemporary legal conservative conceptions of these ideological constructs are compared to historical predecessors in the works of John Locke, Jeremy Bentham, Hans Kelsen, and others. I argue that the legal conservative versions of these constructs are defective and seriously imperiled by the threat of legal indeterminacy. I conclude that they should be reconfigured to meet this challenge.

This dissertation consists of three essays in applied microeconomics.The first chapter investigates the effect of coroner partisanship on COVID-19 death reporting. The politicization of the COVID-19 pandemic in the United States has raised questions about the integrity and accuracy of death reporting, particularly in jurisdictions with elected, partisan coroners. Using mortality data from the CDC and manually collected data on county-level death certification systems and coroner party affiliation where applicable, I examine the parallel systems of appointed medical examiners and elected coroners and analyze the effect of partisanship on reported COVID-19 deaths. Cross-sectional comparisons do not seem to suggest counties with coroners report fewer deaths than those with medical examiners, and difference-in-differences specifications reveal limited evidence of a statistically significant but not economically meaningful effect of partisanship on reported COVID death counts. The second chapter examines the effect of new information on lead water pipes on housing prices. In 2016, the Water and Sewer Authority of Washington, DC released an online map that contains information on lead service lines (LSLs) for all properties in the district. Using the release as a natural experiment, I estimate the effect of the new information on prices of properties with and without LSLs. Recent literature has found that housing lead reduction policies such as remediation mandates have significant price effects. In DC, while the map’s release was followed by a marked increase in requests for water lead tests, neither a difference-in-differences model nor a repeat sales model captures a significant divergence between housing prices of the two types of properties after the release, implying the housing market response to the information was limited. The second chapter considers the effect of the marriage tax subsidy on the marriage decision of same-sex couples. The U.S. Supreme Court’s ruling on United States v. Windsor in June 2013 compelled the federal government to recognize state-sanctioned same-sex marriages, including for tax purposes. The switch in the income tax filing status for same-sex couples meant that the marriage penalty or subsidy as a result of joint filing became a relevant factor that may enter couples’ marriage decisions. I construct a sample of married and cohabiting same-sex couples in 2012 and 2014 from public-use data of the American Community Survey. Using a difference-in-differences methodology, I do not find evidence that same-sex couples who would earn a higher marriage subsidy became more likely to marry after the Supreme Court ruling.