The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others have them at all. In order to overcome the mismatch between the nature of the rights claims the Court faces and its anachronistic technology of adjudication, it will need not only to adopt a form of proportionality analysis but it will also need to adjust the ways in which it receives and assesses empirical social facts and it will need to broaden its remedial toolkit to include, for example, suspensions of invalidity. While proportionality is far from perfect, its flaws are anticipated by the challenges of constitutional democracy itself under conditions of pluralism.
I would like to thank Vicki Jackson, David Law, Vanessa MacDonnell, Ronaldo Macedo, John Manning, Martha Minow, Iddo Porat, Gila Stopler, the anonymous reviewer, and workshop participants at Harvard Law School, the University of Minnesota Law School, the University of Texas at Austin School of Law, and the Global Constitutionalism and Human Rights Conference at Boston College Law School for insightful comments on earlier drafts.
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