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They want to believe


I’m trying to be polite here, but I find this kind of thing basically absurd:

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.” . . .

Constitutional-law education is in a crisis, Justin Driver, a professor at Yale who has taught the subject for 15 years, told me.

“One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

The court has always operated in a space between law and politics, said Michael Klarman, a Harvard professor and constitutional historian in his 37th year of teaching. But the justices’ votes used to be less predictable; they have never been so starkly divided along partisan lines as they are now.

“What’s changed is that today’s Republican-appointed justices are much more conservative than any justices in the last hundred years,” Professor Klarman said, “and they represent the views of a Republican Party that is much more extreme than anything we’ve been accustomed to in the last hundred years.”

Ding ding ding.

Contrary to the whole thesis of Jesse Wegman’s piece — the good old (Warren Court) days we had constitutional law, but now we just have politics masquerading as law — the Supreme Court has always been a thoroughly political institution, and, given its role in the American political and legal system, could not possibly be anything other than what it is now.

The reason all these liberal institutionalist Court worshipers who have lost their faith but kept their jobs are so upset is not because the SCOTUS has bad JURISPRUDENCE — it’s because the SCOTUS has bad horrible no-good extremely reactionary POLITICS.

As I pointed out recently, cases like Griswold and Loving and Roe and Obergefell all required conjuring up a fantasy history of an America that bore little relation to the actual history of America. And they did this IN EXACTLY THE SAME WAY that today’s reactionary justices call up, via the magic of “originalism,” a fantasy history of America that, among other things, disappears cases like Griswold and Loving and Roe and Obergefell, or more precisely, disappears the social and political and legal revolutions that made those cases possible in the first place!

As any political scientist will tell you, the Supreme Court has always been a quasi-legislature, because what else could it possibly be, given what we expect it to do? When you “interpret” a centuries-old document, and even more so when you grapple with the deep streams of history and precedent that lie between you and that document, you MUST engage in an essentially political exercise, because there is NO NON-POLITICAL WAY of doing this!

To give what should be but is not an extremely obvious example, leaving aside the insuperable empirical problems of figuring out what the framers of the 14th amendment, say, would want us to do today about this or that problem if they could be revivified for consultation, why should we be bound by that, as opposed to precedent, or contemporary opinion, or some combination of some or all these things? To answer, “because it’s the law” is simply straight up question begging, in a legal culture in which all these answers are both legitimate and illegitimate in the eyes of the relevant interpretive community, i.e., the lawyers and judges and politicians and ordinary citizens of today.

What makes Roe good constitutional law and Dobbs an outrage — OR VICE VERSA! — is simply whether the observer is a political progressive or a political reactionary, AND THAT IS THE ONLY DIFFERENCE BETWEEN THE TWO CASES.

Also Santa Claus isn’t real.


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