Democracy, Foreign Affairs, and Theories of Legal Interpretation in the Supreme Court's October 2011 Term

Abstract

This paper examines the Supreme Court's recently concluded term as it treated the issues of democracy, the constitutional division of foreign affairs powers, and competing theories of legal interpretation among sitting Justices. Indeed, the Supreme Court's October 2011 term saw meaningful developments in redistricting jurisprudence, particularly as it relates to democracy, federalism, and separation of powers; set the stage for a foreign affairs clash between Article I and Article II of the constitution; and highlighted the philosophical rivalry between competing theories of legal interpretation, particularly Textualism and Intentionalism. These developments are analyzed with a focus on four specific cases decided last term: Perry v. Perez (Jan. 2012) and Tennant v. Jefferson County Commission (Sept. 2012) for redistricting; Zivotofsky v. Clinton (March 2012) for the constitutional division of foreign affairs powers; and Mohamad v. Palestinian Authority (April 2012) for the scuffle between Justice Scalia's textualism and Justice Breyer's intentionalism.