Malz on Rodriguez and Contingency in Constitutional Law

Earl M. Maltz, Rutgers Law School, has posted The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law, which is also to appear on Virginia Law Review Online:

San Antonio Independent School District v. Rodriguez was by any standard one of the most consequential decisions of the early Burger era. Not surprisingly, the doctrinal arguments that underlay the Court’s analysis in Rodriguez have been dissected in detail by many academic commentators. By contrast, this essay, which was prepared for a symposium commemorating the fiftieth anniversary of the decision, focuses on the institutional context in which the decision was rendered. The essay argues that the outcome of the case was in fact prefigured by a series of events that took place almost five years before the decision was handed down and led to the creation of a Court where a majority of the justices were hostile to the claims of the plaintiffs. Thus, Rodriguez provides a classic illustration of what might aptly be described as the contingent nature of constitutional law.

--Dan Ernst



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