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A Political Court

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Richard Posner:

Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. Eighteenth- and 19th-century politicians, and many 20th-century ones as well, did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.

I would add here that the indeterminate nature of the constitutional provisions that generate the most interest goes beyond the fact that times change and things happen that framers and ratifiers couldn’t have anticipated. There is often not a consensus among framers and ratifiers about the specific implications of constitutional provisions even contemporaneously. There is no technical way, whether in 1789 or 2016, of determining precisely what constitutes a “cruel and unusual punishment” in a controversial case. Constitutional provisions are often written broadly precisely because it’s easier to reach consensus about a general principle than a specific application.

I’ll return to this in a separate post, but one obvious problem with trying to determine the “original meaning” if the Fourteenth Amendment is that the framers of the Fourteenth Amendment generally thought that who interpreted the provisions in Section 1 was far more important than how precisely Section 1 was worded.

I may seem to be criticizing the court by calling it politicized. That is not my intention. When a statute or constitutional provision is clear, judges (including justices of the Supreme Court) will usually apply it to disputes within its scope, whether they like it or not. But when there is no clarity in the relevant provision — when the judges are on their own — their priors will tug them this way or that, and the tug may be decisive. That is inevitable, and bowing to the inevitable is not misconduct, however much it deviates from the “official” — the self-protective “the law made me do it” — conception of judicial decision-making.

This is also important point. As I’ve said when discussing the usefulness and limitations of political science models of judicial behavior, to say that the Supreme Court essentially a political court does not entail embracing the most extreme form of legal realism. There are cases in which legal texts are clear and specific enough that there’s no serious dispute about the meaning. There are other cases where an argument is not strictly speaking foreclosed by a legal text but is generally seen as unreasonable by the relevant interpretive community at a given time (for example, reading the 14th Amendment as requiring states to provide universal health care or to treat abortion as first-degree murder.) But these cases generally don’t get to the Supreme Court, particularly when the Court hears fewer than 100 cases a year and has wide discretion over its docket. The Supreme Court is essentially a political body, which is different than saying that law does not meaningfully constrain judges.

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  • Vance Maverick

    interpretation implies understanding a writer’s or speaker’s meaning

    No it doesn’t. I’m not even being postmodern about this. It can mean those things, but it can also mean deciding what meaning to work with.

    • fleer

      Well, in law, what Scott wrote is broadly uncontroversial. There’s some debate about the best way to go about this, but the court as the legislative body’s “faithful agent” is widely accepted. Even a lot of the plain meaning/textualist types will say something like, the only place we’re *allowed* to look for evidence of Congressional intent is in the language of the statute itself, but they’re still operating under the general assumption that understanding Congressional intent is the goal.

      • Srsly Dad Y

        Yes, the judicial function demands that judges at least pay lip service to what the other branches “meant” the law to be.

      • Vance Maverick

        He was quoting Posner. But I take your point. Posner’s not talking about translating Sappho (though I think “cruel and unusual” may be a line from one of the fragments).

  • Dilan Esper

    This is Scott’s best Supreme Court post in a long time.

  • sleepyirv

    And with the Supreme Court, there are usually no “easy” cases. As Obama said about his job, “One of the things that you realize when you’re in my seat is that, typically, the issues that come to my desk — there are no simple answers to them. Usually what I’m doing is operating on the basis of a bunch of probabilities: I’m looking at the best options available based on the fact that there are no easy choices. If there were easy choices, somebody else would have solved it, and it wouldn’t have come to my desk.”

    The same thing holds true for the Supreme Court. If there is a technical or obvious answer, usually the circuit courts will have made the correct choice on their own. The cases that reach the Supreme Court usually are difficult values questions or complicated policy issues. The Supreme Court is generally good with “applying the law” cases, it just doesn’t come up that often.

    • Dilan Esper

      The Supreme Court hears plenty of fairly “easy” cases. Most of them you don’t hear about, but they get decided unanimously and involve rather technical issues.

  • dr. hilarius

    One of the subtler ways the Supreme Court is political is through the extreme control it has over what cases it hears. I think SCOTUS being political is inevitable, but the certiorari process just makes it even worse. I think it might be a good idea to seriously consider repealing/modifying the Judiciary Act of 1925.

    • Dilan Esper

      The Supreme Court’s jurisdiction used to be less discretionary, but it didn’t make much of a difference. The Court fobs mandatory jurisdiction cases off to special masters or notes probable jurisdiction and summarily affirms mandatory appeals it doesn’t want to decide with a written opinion.

      I don’t see much that can be done about this.

  • efgoldman

    When a statute or constitutional provision is clear, judges (including justices of the Supreme Court) will usually apply it to disputes within its scope, whether they like it or not.

    Has Posner commented directly on Shelby County? Because the language of both the VRA and the 15th amendment, and the overwhelming congressional intent, couldn’t be clearer.

  • Sebastian_h

    Finally at least a HINT that a legal realism approach might be a bad idea.

    Still the problem remains that if you abandon the bulwark theory** (which Scott does in his papers) you are left with a very hard to defend position for the Supreme Court. Unlike other veto points, mistakes made at the Supreme Court level are orders of magnitude more difficult to correct.

    Posner’s analysis emerges from a background where the bulwark idea of defending the Constitution is ascendant. We don’t NEED the Supreme Court to rule on most of the issues he says we need the Court for if it isn’t defending the Constitution, we could have the Administration do all of that and be much more politically accountable. The reason we need the Court to do it is because the Constitution is supposed to bind even the President and even Congress. If we abandon that idea, we don’t need the Supreme Court to make all of those decisions.

    “I may seem to be criticizing the court by calling it politicized. That is not my intention. When a statute or constitutional provision is clear, judges (including justices of the Supreme Court) will usually apply it to disputes within its scope, whether they like it or not.”

    I believe this is becoming less and less true. At the Supreme Court level some Justices are willing to create lack of clarity to get what they want–I would say that Kagan and Alito are essentially 99%+ acting like a legal realist would expect from them if they never consulted any text at all. But that is a criticism of Kagan and Alito–they are acting with bad judicial character. My problem with the legal realists is that they don’t seem to value judiciousness at all. The Supreme Court can’t ultimately survive as a body that is seen to make decisions on a purely (or nearly purely) political level.

    “The Supreme Court is essentially a political body, which is different than saying that law does not meaningfully constrain judges.”

    This sounds like the kernel of interesting analysis which I have never seen approached from a legal realist perspective. How does the law meaningfully constrain [Supreme Court] judges?

    **[I’m using the ‘bulwark theory’ because that is what Scott uses in his papers. It is the idea that the Supreme Court guards against unconstitutional encroachment by states or Congress or the Presidency. It is by far the dominant non political scientist explanation of why the Supreme Court gets to decide lots of things that it decides, but is rejected by the legal realists.]

    • The Supreme Court can’t ultimately survive as a body that is seen to make decisions on a purely (or nearly purely) political level.

      What would keep it from surviving as a body?

      And…basically don’t people (by and large) think it’s acting politically to the degree they disagree with the outcomes? I mean, I do feel that cases like Bush v. Gore are provably lawless and that lots of recent ones are obviously bonkers. But I also disagree with the outcome.

      • Sebastian_h

        I think Alito and Kagan both act purely politically and they often vote on opposite sides of the case. In fact I suspect one of the reasons we have put up with the Court employing motivated reasoning as much as we have is because the worst actors have tended to balance each other out.

        “What would keep it from surviving as a body?”

        ‘A body’ or ‘the highly politicized body with lots of power and life tenure’ that it currently is? If you abandon the bulwark theory as Scott suggests, there isn’t a good reason for the majority to listen to the Court when the Court doesn’t want to let it do what it wants. Scott’s project attacks the reason we bother listening to the Court without replacing a new reason we should bother listening to the Court. Now it would be surprising, but maybe he is a follower of Strauss and would advocate lying to the masses about it all.

        • If you abandon the bulwark theory as Scott suggests, there isn’t a good reason for the majority to listen to the Court when the Court doesn’t want to let it do what it wants.

          You mean the populace?

          I just don’t see anything that would change the role of the supreme court anytime soon. Certainly not political science.

          I mean, is some president going to ignore a ruling? A political Supreme court won’t take that into account?!

          This just seems utterly bonkers.

          The way that the Supreme Court survives as a body is 1) the constitution isn’t going to change anytime soon and 2) we’re not going to have a coup and 3) it’s highly unlikely that even a unified congress and Presidency would do much unless the Court went totally nuts and 4) a highly politicised Court is unlikely to do that.

          I guess a Trump presidency with a crazed republican congress could go there, but that’s not in reaction to the politcisation of the court!

    • Joe_JP

      I believe this is becoming less and less true. At the Supreme Court level some Justices are willing to create lack of clarity to get what they want

      The second part is true but not sure — and I’m more familiar with the history of the Court than some people — how it is “becoming less and less true.”

      • Joe_JP

        How does the law meaningfully constrain [Supreme Court] judges?

        The people chosen tend to be those inclined by profession, education and experience to reasonably apply legal texts. Others will not follow their dictates — and there are various ways to block them (jurisdiction controls, control of the purse, others have the responsibility to carry out their dictates, Congress power to pass new statutes, impeachment power, etc.) when that occurs — if they are seen as not reasonable actors.

        This is a “meaningful” constraint just as legislators and executives have constraints even though by raw power they can conceivably just ignore the text of the law.

        • Sebastian_h

          Yes, but “reasonable actors” doesn’t have nearly so concrete a meaning if they aren’t textualists or originalists or whatever you want to call it. That’s why legal realists are so troubling. They spend huge amounts of analysis trying to undermine “textualist analysis” or “originalist analysis”. The popular understanding of judging isn’t anything like what the legal realists say it is. If “reasonable actors” just means “politically expedient” we already have branches that do that. My point is that the more successful the legal realists are in convincing everyone that it is all just political decision making in a black robe, the less there is a reason to listen to the black robe.

          • Joe_JP

            nearly so concrete a meaning if they aren’t textualists or originalists or whatever you want to call it

            I don’t know what to call “it” since, e.g., either label can be applied to both the opinion and primary dissent in Heller and a range of other opinions. The ‘concrete’ nature is unclear to me.

            If, on the other hand, other approaches like pragmatism is used, it very well can “restrain” more. Anyway, seems like your “point” is something else, some strawman about it being “just” political decision making being part of it.

          • DrDick

            If you think that the people, like Scalia, who advocate “textualist analysis” or “originalist analysis” are any less arbitrary or more restrained than “legal realists”, you need to put the crack pipe down.

      • Scott Lemieux

        The second part is true but not sure — and I’m more familiar with the history of the Court than some people — how it is “becoming less and less true.”

        Absolutely, yes. The Supreme Court is no more “political” now that it ever was. I have no idea how anyone familiar with the Marshall Court could think otherwise.

    • Scott Lemieux

      Unlike other veto points, mistakes made at the Supreme Court level are orders of magnitude more difficult to correct.

      Just in this sentence, there are two major problems with your assumptions:

      1)The central problem you simply refuse to grapple with is that “mistakes” is just pure question-begging. It’s simply rare that any case that gets to the Supreme Court produces an answer that no reasonable person could possibly defend. Almost by definition, cases that get to a Supreme Court that controls its own docket are cases with multiple answers that are plausibly “correct.” No serious evaluation of judicial review can ignore this fact.

      2)On the one hard, Supreme Court decisions without a substantial base of political support are in fact rarely enduring. On the other hand, “mistakes” by other political actors are in fact often very difficult to correct. Path dependence saturates the American political system, which places many constraints on majority rule.

      I would say that Kagan and Alito are essentially 99%+ acting like a legal realist would expect from them if they never consulted any text at all.

      Again, this completely ignores the lesson discussed above. Legal realism by definition pretty much explains Supreme Court decision-making. And you’re actually wrong about Alito, who as a circuit court judge was willing to apply precedents he disagreed with when this was required. As a Supreme Court justice, he’s pretty much a human Republican platform in politically salient cases, but that’s because the legal texts make these results plausible. What are the cases you have in mind where Alito has voted or written an opinion that has absolutely no plausible legal basis? (Shelby County, the most plausible Roberts Court candidate to not meet that threshold, of course had five votes.)

      I have no idea what possible basis there is for singling out Kagan as opposed to the other liberals with virtually indistinguishable voting records at all.


      How does the law meaningfully constrain [Supreme Court] judges?

      It mostly constrains Supreme Court justices in terms of what cases reach the court and what questions are on the table. Votes on the merits in politically salient cases are mostly determined by political priors, but that doesn’t mean that the law doesn’t matter per se.

      • Dilan Esper

        It mostly constrains Supreme Court justices in terms of what cases reach the court and what questions are on the table. Votes on the merits in politically salient cases are mostly determined by political priors, but that doesn’t mean that the law doesn’t matter per se.

        This is what I meant when I said this was a great post by Scott. This is basically a 100 percent accurate go-to sentence on what the Court does.

        • Scott Lemieux

          I really hate that oft-cited to the point of cliche Tocqueville quote about how everything in American politics ends up as a judicial question. Plenty of stuff doesn’t.

          • Dilan Esper

            Right. And plenty of judicial questions are basically straightforward. And further, even some non-straightforward ones don’t impact the justices’ priors (which is why you may sometimes see some non-partisan aligned split votes in some Supreme Court cases that don’t involve the big hot-button issues– the justices are trying to get the cases right and are basically honestly evaluating a difficult statutory interpretation issue or whatever).

            Additionally, even some cases that DO impact the priors, impact them in non-standard ways. So Clarence Thomas, fresh from the Anita Hill hearings, was the 5th vote in a child molestation entrapment case, and also seems to believe in a First Amendment exception for cross burners (understandable given he grew up as a black man in rural Georgia).

            But the ideological cases on the big issues proceed exactly as Posner says they do.

            • Scott Lemieux

              So Clarence Thomas, fresh from the Anita Hill hearings, was the 5th vote in a child molestation entrapment case, and also seems to believe in a First Amendment exception for cross burners (understandable given he grew up as a black man in rural Georgia).

              The Confederate license plates case, too.

              In addition, as I say at the link, even when cases are obviously largely determined by priors there is sometimes a legal issue at stake that would cause a Supreme Court justice to vote differently than she would as a legislator. If you code Raich as a Commerce Clause case the attitudinal model gets 7 of 9 votes right; if you code it as a case about the seizure of medical marijuana it gets 7 or 9 votes wrong.

      • Sebastian_h

        You are using different standards when evaluating the different actors. The other strong veto points can all be dealt with in an election every few years if there is a serious problem.

        “It’s simply rare that any case that gets to the Supreme Court produces an answer that no reasonable person could possibly defend.”

        Yes, but that is largely because at this point certain areas of jurisprudence have gotten so thick with 10 million part balancing tests that you just put a thumb on part number 9,500,845 and get the result you want. “Completely indefensible” is a cold comfort when Peter Singer’s defense of infanticide counts as serious philosophy. That what made O’Connor such a hack compared to Ginsberg who you can at least understand even if you disagree with her. O’Connor’s opinions nearly all read “50 pages of balancing text where I won’t tell you how any of the factors really weigh out, and then a conclusion”.

        “On the one hard, Supreme Court decisions without a substantial base of political support are in fact rarely enduring. On the other hand, “mistakes” by other political actors are in fact often very difficult to correct. Path dependence saturates the American political system, which places many constraints on majority rule.”

        Without details it would appear you’re wrong in terms of comparative difficulty. You’re using “a substantial base of political support” to mean wildly different things in different cases. In order to correct a perceived mistake in Congress, you need just elect a few more people. In order to correct administrative mistakes you elect new presidents. All of these can be done in the space of a few years if need be. In order to correct Supreme Court mistakes you either have to pass a Constitutional amendment, or wait for a bunch of court members to die. The error correction there takes decades. Those are all varying degrees of “difficult” but you’re just being ridiculous if you think the passing a constitutional amendment part is the easiest of those. The error correction mode for Supreme Court decisions is much harder than the error correction mode for Congress or the Presidency.

        Again, once you reject the bulwark theory, it isn’t clear why the Court should ever get to overrule Congress. On what basis is it doing so?

        “I have no idea what possible basis there is for singling out Kagan as opposed to the other liberals with virtually indistinguishable voting records at all.”

        I understand that, but that is because you don’t believe in fidelity to the Constitution as a thing. I can read Ginsburg, disagree with her, and still understand how she is trying to be faithful to a vision of the Constitution. With Kagan you can’t see anything other than “I want this policy to be this way”. Ginsburg is trying to be judicial, Kagan isn’t.

        “And you’re actually wrong about Alito, who as a circuit court judge was willing to apply precedents he disagreed with when this was required. As a Supreme Court justice, he’s pretty much a human Republican platform in politically salient cases, but that’s because the legal texts make these results plausible.”

        I don’t understand what you mean by “the legal texts make these results plausible”. I know what I would mean if I said that, but you have entire papers denying that the textualist approach is important. Why do you suddenly invoke it now? Why not just say “Alito voted in a constitutional case”?

        • Dilan Esper

          Yes, but that is largely because at this point certain areas of jurisprudence have gotten so thick with 10 million part balancing tests that you just put a thumb on part number 9,500,845 and get the result you want. “Completely indefensible” is a cold comfort when Peter Singer’s defense of infanticide counts as serious philosophy. That what made O’Connor such a hack compared to Ginsberg who you can at least understand even if you disagree with her. O’Connor’s opinions nearly all read “50 pages of balancing text where I won’t tell you how any of the factors really weigh out, and then a conclusion”.

          The reason why you have all these balancing tests is because the Constitution is full of vague, broad provisions drafted 140 to 240 years ago.

          Let’s take one of the most famous and straightforward ones: freedom of speech.

          Can you interpret it without all the balancing? Well, you can pretend to– as Black and Douglas did. But the problem is, it doesn’t actually work. If you take it literally, you end up with all sorts of ridiculous situations where you are protecting obviously unprotected speech, such as direct threats of violence, defamation, legitimate wartime secrets, etc.

          So what Black and Douglas did in practice was they categorized. Well, they said, some stuff wasn’t really speech. It was conduct. But it’s pretty clear that this is a much worse way of going about things than simply using various balancing tests. Because it’s completely arbitrary. For instance, wearing a jacket that said “Fuck the Draft”, to Black, wasn’t speech. It was conduct. It was wearing clothes. Meanwhile, defaming a public figure was speech, not conduct, so according to Black falsely saying that a famous person was a child molester without any factual basis whatsoever was protected by the First Amendment, whereas protesting the Vietnam War with an article of clothing wasn’t.

          It doesn’t work. What works is balancing.

          But pure balancing doesn’t work that well either. Learned Hand said in Smith v. United States that it’s easy– just balance the harm to the government against the interest of the speaker. But it turns out the government can always assert some grievous harm from speech, so such a test was insufficiently speech protective.

          So where we end up is the situation you decry, but is actually the best system– different balancing tests for different situations. Political protest is protected under the very strict Brandenburg test, whereas commercial speech gets the more lenient Central Hudson test, incitements to fight are generally unprotected but cannot be sorted based on viewpoint under RAV v. St. Paul, and child pornography is totally unprotected.

          And those balancing tests, inevitably, leave plenty of room for disagreement and for the justices to rely on political priors. Nonetheless, I don’t see a better way.

          • djw

            Yes, exactly. Balancing tests are going to exist in constitutional interpretation, the only question is whether there’s an effort to make them explicit or not.

            • Sebastian_h

              Clear balancing tests are fine. Have you read an O’Connor opinion? Those tests are anything but clear. Hell if you didn’t know from her political priors how it would end up you could easily take out the conclusion and have no idea which way the balancing act turned up. That isn’t a constitutional balancing test, that is motivated reasoning.

              • Scott Lemieux

                1)Can you provide some examples of the non-O’Connor balancing tests you feel always produce determinate, apolitical results?

                2)I don’t think you’ve adequately addressed Dilan’s point. The justices famous for eschewing balancing tests — Black and Scalia, most obviously — have completely predictable voting records that mostly correspond to the ideological priors of New Deal Democrats and Reagan Republicans, respectively. In what sense are they less “political” than O’Connor?

          • Scott Lemieux

            Dilan is entirely correct that everyone balances and the only question is whether it’s explicit, but I should say that I will quibble with on one point:

            It was conduct. But it’s pretty clear that this is a much worse way of going about things than simply using various balancing tests.

            I don’t really buy the “much worse” argument either. After all, Douglas got Adderley and Cohen right (from a pro-free speech perspective.) Black got these cases wrong not because of his preference for clear rules but because he overstayed his welcome on the Court by about 15 years and become kind of a grouchy reactionary where protesters were concerned.

        • djw

          In order to correct a perceived mistake in Congress, you need just elect a few more people.

          This is just transparently false; so obviously wrong I can’t beleive you actually believe it. To take a salient and fresh example: In 2010, the political party that believed the ACA to be a tremendous and devastating error won a great deal more than a few more seats; in 2014 their gains were further entrenched and reached both houses. No remotely competent political observer ever considered the possibility they’d be able to correct that error to be at all serious, and for very good reason.

          • Sebastian_h

            And if they win the presidency this year they can correct that error if they choose to for a total correction period of about 7 years. Would you care to give an estimate on how long it takes to correct a Supreme Court error?

            I would estimate about 20 years. Maybe 15 if you’re super lucky. So the question is “compared to what?” right?

          • Sebastian_h

            Also you don’t seem to consider the source of legitimacy. Congress and the Presidency get renewed sources of legitimacy every few years in elections. The Supreme Court gets its legitimacy from being a bulwark against Constitutional encroachment. You reject the bulwark function without addressing any new source of legitimacy. You just say things like “other branches have veto points” without addressing the legitimacy question at all.

            • Also you don’t seem to consider the source of legitimacy. Congress and the Presidency get renewed sources of legitimacy every few years in elections.

              But for wide swaths of the electorate, this isn’t true.

              Does anyone regard congress as having legitimacy? It certainly has no favorability.

              Is Obama regarded as having legitimacy by any Republican? Did it go up after he was re-elected?

              Most legitimacy in a polarised, partisan system like ours comes from political agreement. (Esp. when one side is rip roaringly destroying norms.)

              There’s considerable inertia and resilience built into the system as a whole. It’s really not the case that individual sub institutions have “dedicated” sources of legitimacy. Everyone gives lip service to sources of legitimacy (“Mandate!” “the constitution!” “The will of the people/mainstream!”), but what keeps the system from falling apart is not renewal of legitimacy by elections. At least, as far as I can see.

              No, presumably, enough hits to the system will bring it down. But it’s hard to see how it will bring down the court independently.

              • djw

                But for wide swaths of the electorate, this isn’t true.

                Right, if we’re talking about sociological legitimacy this isn’t true at all. The court has legitimacy to burn compared to congress, and it isn’t particularly close, even though the court’s approval is near historical lows, but still ~3X that of Congress.

        • Scott Lemieux

          You are using different standards when evaluating the different actors. The other strong veto points can all be dealt with in an election every few years if there is a serious problem

          Not necessarily. Say you consider the Sebelius decision as wrong and the ACA as unconstitutional. You have to win elections in both Houses of Congress and the presidency simultaneously, in elections in which voters vote for a variety of different issues. And the longer the ACA remains in place the harder it is for even a unified Republican government to overturn it. {Just saw djw beat me to this example.] Status quo bias in the Madisonian system is intentionally strong.

          Yes, but that is largely because at this point certain areas of jurisprudence have gotten so thick with 10 million part balancing tests that you just put a thumb on part number 9,500,845 and get the result you want.

          This is absolute nonsense. The idea that there were clear, technical, apolitical answers to constitutional questions of interest even in the 19th century is completely false. You should really do some reading about the Marshall and Taney Courts.

          In order to correct a perceived mistake in Congress, you need just elect a few more people.

          See above. It’s often much harder than that. Abortion bans were enormously difficult to repeal even in states where they were unpopular, for example. Elections aren’t referenda, and statutes (like abortion laws) that disproportionately affect the poor can be very durable in ways that aren’t easily solved by saying “just wait until the next election.”

          The error correction there takes decades.

          Actually, not always. 5-4 decisions can also be one election away from being changed. As with anything, it depends. The most consequential judicial attack on federal power — the series of decisions striking down New Deal legislation — didn’t survive a decade. Dred Scott was a dead letter in less than five years. OTOH, Plessy v. Ferguson lasted for decades, but this was because there was near-consensus among federal and relevant state political elites that it was correct for much of this period.

          if you think the passing a constitutional amendment part is the easiest of those.

          Of course not, but of course Supreme Court “mistakes” are most often overruled by changes in court personnel.

          Again, once you reject the bulwark theory, it isn’t clear why the Court should ever get to overrule Congress.

          Well, personally, I think virtually all of the added value to judicial review in the U.S. comes from the ability to assess the constitutionality of the actions of 1)unelected executive branch officials and 2)state legislatures. As Holmes also argued, if the judicial review of Congressional statutes were eliminated that would be fine with me. (But nullifying acts of Congress has also generally been a very small part of what the Supreme Court does.)

          Ginsburg is trying to be judicial, Kagan isn’t.

          Again, I have no idea what this means, but one thing I do know is that it doesn’t cause them to vote differently, so how consequential can it be?

          I know what I would mean if I said that, but you have entire papers denying that the textualist approach is important. Why do you suddenly invoke it now?

          Again, I don’t know what this means. There are of course many legal arguments that are clearly foreclosed by statutory or constitutional text. The reason “textualism” isn’t useful as a constraint on Supreme Court justices in many cases is that the case is in the court precisely because the text is broad or ambiguous.

          • Joe_JP

            the judicial review of Congressional statutes were eliminated that would be fine with me

            I’m not really fine with the idea since think judicial review for certain types of statutes specifically those that burden minorities etc. is warranted be it state or federal actors doing it. Windsor, Bolling, the dissent in the second Carhart decision, Boudemine (or however it’s spelled) etc is okay with me.

            • Scott Lemieux

              I mean, we’re not getting rid of it, and that’s fine with me too. But your defense of judicial review of federal statutes can’t really be “it’s good as long as it produces good results.” I mean, we don’t have to go back very far to see the Supreme Court standing Ely on his head and making it harder for Congress to protect minority rights. You can’t assume every decision will be a Windsor rather than a Shelby County or Morrison.

          • Lawrence “Larry” Lessig

            Elections aren’t referenda

            Hey!!!

  • Breadbaker

    The idea that when the constitution or a statute uses obvious weasel words like “due”, “cruel and unusual”, “equal” or “reasonable” that the drafters intend to constrain, rather than invite, interpretation by judges using their contemporary sense is ahistorical. Common law didn’t come down from Mt. Sinai. The Constitution clearly contemplated common law methods of judging.

    • Srsly Dad Y

      Don’t tell that to anyone who’s about to go to law school, it will ruin the suspense of the whole semester of Con Law.

      • Sebastian_h

        Again you can’t divorce it from the framework and expect it to survive. Common law included a natural rights background that very few political realists agree with and a very little ‘c’ conservative concept that essentially no liberal court commentator desires.

        Further, common law analysis employs all the techniques that you hate from Scalia, just to a different body of work. I agree that the framers intended to have the style of analysis apply to judges dealing with the Constitution. But that isn’t a very legal realist concept. The idea that common law analysis has anything to do with “the judge overturns old ideas and replaces them with his ideas” is ridiculous.

      • Lee Rudolph

        SPOILERS, dammit!

  • JG

    19th century politicians couldn’t foresee gerrymandering? Where do you think it comes from?

    • Bill Murray

      I saw this too and agree. I also would imagine that electronic surveillance was foreseen more or less as early as it could be as non-electronic surveillance was certainly well known

      • Barry_D

        “I saw this too and agree. I also would imagine that electronic surveillance was foreseen more or less as early as it could be as non-electronic surveillance was certainly well known”

        It’s the scope. When opening and reading somebody’s mail was handwork, there were limits. When it’s a mass production business, it’s different.

    • Breadbaker

      What they didn’t see was that redistricting would be deemed to have a constitutional dimension. The original gerrymander wasn’t an issue for the courts, it was a political argument. Who knew that 21st century Republicans would turn it into a sacrament?

      • Bill Murray

        who knew that someday, some people would try to use this to their own advantage and make it an important part of their tenets? Anybody that knows much about human nature

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