76 U. Colo. L. Rev. 767 (2005)
Judicial Modesty and the Jury

handle is hein.journals/ucollr76 and id is 777 raw text is: JUDICIAL MODESTY AND THE JURY
SUJA A. THOMAS*
INTRODUCTION
That even purportedly fair adjudicators 'are disqualified by their inter-
est in the controversy to be decided is, of course, the general rule. '1
In the exercise of judicial review, the judiciary plays the unique role
of policing its own power in relationship to the competing powers of
other actors under the Constitution. These actors include the legislative
and executive branches of the federal government, the states,2 the crimi-
nal jury, and the civil jury. While the Court has examined the manner in
which the judiciary should interpret the power of other actors-for ex-
ample, how the Court should analyze the constitutionality of legislative
acts3-the Court has not separately considered the general question of
how the judiciary should interpret the power of constitutional actors that
have power that competes with the judiciary's own power. That is, the
* Associate Professor, University of Cincinnati College of Law. J.D., New York Uni-
versity School of Law; B.A., Northwestern University. I am grateful for the comments of
other scholars in discussions or concerning drafts of this Article. These individuals, some of
whom may not agree with my final arguments and conclusions, include: Joseph Biancalana,
Christopher Bryant, Gabriel Chin, Ruth Colker, Adam Feibelman, Rafael Gely, Nancy Marder,
Robert Nagel, Kevin Opp, Wendy Parker, Martin Redish, Michael Solinine, Mark Tushnet,
Michael Van Alstine, Ingrid Wuerth, and Amanda Zaremba. Also thanks to those who partici-
pated in the Boston College Law School Colloquium and those who participated in the Cincin-
nati summer scholarship program. The research for this Article was supported through a grant
from the Harold C. Schott Foundation.
1. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2651 (2004) (plurality) (quoting Tumey v.
Ohio, 273 U.S. 510, 522 (1927)).
2. One could argue that the Constitution does not grant power to the states because the
Constitution simply reserve[s] to the states those powers not given to the United States and
those powers not prohibited to the states. U.S. CONST. amend. X. For the purposes of this Ar-
ticle, this reference to reserved in the Tenth Amendment is treated as a grant of power.
3. Both the Court and scholars have examined the manner in which the judiciary should
interpret legislative acts. See, e.g., Evan H. Caminker, Thayerian Deference to Congress and
Supreme Court Supermajority Rule: Lessons from the Past, 78 IND. L.J. 73, 79-87 (2003) (de-
scribing the Court's and commentators' discussion of the proper interpretation of the constitu-
tionality of legislative acts). This Article concerns both a more specific and a more general
issue. This Article concerns those circumstances in which the Court must interpret the Consti-
tution where the power of the judiciary actually competes with power of the legislature or an-
other constitutional actor.

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