Fostering global constitutional discourse has long been anathema to the conservative legal movement within the United States. In Dobbs v Jackson Women’s Health Services, which overturned Roe v Wade’s right to an abortion, the court’s conservative justices relied on a globalized analysis. In this article, I identify three potential hypotheses to explain this deviation from conservative orthodoxy. Dobbs’ conservative globalism could be explained by attitudinal preferences, legitimation concerns or the influence of illiberal legal networks. I compare the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District, the other significant Constitutional cases from the court’s 2021–22 term, to deal with religious issues. These two other cases did not feature global citations, despite such citations being able to advance the Justices’ policy preferences or blunt legitimation concerns. Lending credence to the illiberal network hypothesis, Alito’s Dobbs opinion was reliant on a unique amicus briefing by a global network of anti-abortion scholars advocating on behalf of the natural family. Such network campaigns were absent from the proceedings of Carson and Kennedy.

By many measures, the public knows little about politics. But just how little people seem to know depends on the questions that are put to them. In particular, knowledge levels seem higher when people are asked closed- rather than open-ended questions. In turn, differences between estimated knowledge levels are sometimes attributed to fundamental differences between these types of questions. Building on this previous research, the present study uses a pre-registered experiment conducted with a representative national sample to shed new light on the relationship between question form and knowledge measurement. The authors find that inferences about political knowledge depend less on fundamental differences between open- and closed-ended questions than on two little-appreciated aspects of survey design: the number and difficulty of the response options that accompany closed-ended questions. These aspects of survey design have large effects. Scholars who use the same questions with different response options may reach substantively different conclusions about the public's levels of knowledge.

In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

High-profile cases in the Supreme Court of the United States (‘SCOTUS’) on religion tend to attract a certain amount of academic comment in the United Kingdom but US judgments are cited only infrequently by the superior courts in the UK. In return, SCOTUS rarely cites foreign judgments at all. The reason, it is suggested, is that the effect given by the First Amendment to the US Constitution is to render US case law of less relevance to the UK than, for example, judgments from jurisdictions such as Canada and Australia.

Exactly 80 years has passed since the completion of the United States Supreme Court building. This comment is not another paper about the importance or historical influence of the greatest of all American institutions, nor about dramatic cases which shaped America, nor about justices and their approaches, nor about characters or world views. It is about architecture and the messages which are sent from the facade of this strong institution to which legal scholars and practitioners from around the world look.

European Court of Human Rights – Canadian Charter of Rights and Freedoms – ‘Hate speech’ – Féret – Le Pen – Keegstra – Commonalities between Canadian and ECtHR jurisprudence –Development of uniform test of incitement – Sharp distinction from US Supreme Court jurisprudence on freedom of expression

The US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

Courts are frequently confronted with complaints about unequal treatment of various sorts, varying from legislative acts limiting the rights of inheritance of illegitimate children, to unequal taxation criteria for property taxes. The need to assess different cases of unequal treatment against the equality principle places before the courts a difficult task. The equality principle demands that the courts examine the reasonableness and justifiability of each specific case of unequal treatment, however different the subject. In doing so, the courts need to respect both the discretion or freedom of the party that is responsible for the difference in treatment, and the interests of the person or group that is disadvantaged by it. In order to enable the courts to take account of all interests at stake in any relevant equal treatment case, some variation in the intensity of review is indispensable. In some cases, it is appropriate to exercise restraint in assessing the justification for an inequality in treatment, while other cases call for the strictest scrutiny. In this contribution, the various factors that are relevant to the determination of the appropriate level of review are identified on the basis of a comparative study of the case law of the European Court of Justice, the European Court of Human Rights and the US Supreme Court. In addition, a standard is offered to balance intensity-determining factors pointing in different directions.