Scott has already taken a flamethrower to Noah Feldman’s cringe-inducing analysis of why the SCOTUS is just fine the way it is. (I really need to do a fresh rant on why law schools in general and elite law schools in particular are so terrible. So many outrages, so little time . . . ).
Here are a couple of related thoughts:
The most basic difference between traditional and modern societies is that in the latter it’s genuinely possible to imagine that the world could be different. For example in The Passing of Traditional Society, Daniel Lerner’s study of the mid-20th century Middle East, Lerner noted that many of the illiterate villagers he interviewed could only respond with laughter when asked what they would do if they were to change places with their rulers, and would not even consider the question of under what circumstances they would leave their native village. Both these possibilities seemed to them almost literally unthinkable.
When it comes to the SCOTUS, most self-styled liberals and progressives might as well be illiterate mid-20th century Middle Eastern villagers, because the possibility of a progressive Supreme Court is almost literally unthinkable to them.
Feldman’s bizarre claim that for the past 90 years the SCOTUS has been more liberal than conservative is just a particularly spectacular illustration of this.
Here are some legal right that you DON’T have in this country:
The right not to starve or freeze death because you have no money.
The right to a job.
If you do have a job, the right to a level of compensation that would keep you and your family out of third world levels of poverty.
The right not to be fired from that hypothetical job for any of an endless list of explicitly arbitrary and malignant reasons.
The right to medical care.
The right to vote without having to spend hours of time on a work day to cast your ballot, even though choosing to do so is one of those reasons that allows an employer to deprive you of your job, which again is the only thing that stands between you and total immiseration, which again you have no legal right to complain about.
And so on and so forth.
All of this is completely outrageous from even the most minimally egalitarian perspective. We live in an almost unimaginably wealthy country — the nation’s economic output is nine times greater per person than it was when FDR was launching the New Deal, and America at that time was both considered and actually was a very wealthy country in comparative and historical terms. That nevertheless we still tolerate all of the above, and indeed barely even notice it, is a testament to how fundamentally reactionary our political and legal culture really is.
A liberal Supreme Court would, if such a thing actually existed, aggressively combat these things, just as the current Supreme Court aggressively combats any attempt, no matter how modest, to ameliorate them. But that circumstance remains literally unimaginable to most Americans, and most particularly to law professors, who fail to notice that the Supreme Court has been “liberal” for the last century only if you assume that no issue that actually matters to somebody who doesn’t make $350,000 per year from a job from which he can’t be fired is actually an important issue.