"Americans’ willingness to accept the Supreme Court’s mystical role is partly a symptom of disappointment in our own democratic capacities."

"Congress is the most directly representative body of the federal government, and almost no one sees it as having principled authority or moral charisma. Hoping that the Supreme Court will make us better than we can otherwise be, better than our own representative institutions, is neither self-respecting nor very likely to succeed."

Writes lawprof Jedediah Purdy in a very layperson-accessible presentation of the progressive case against judicial review. I think he's quite wrong, by the way.

Expect to see much more of this sort of thing in the press as Erwin Chemerinsky's book "The Case Against the Supreme Court," hits the market this September. From the book's description at Amazon:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens [sic!], are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole, The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.

Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic? This topic has been spewed across the internet for years and the spewers include many writers who don't even bother to go to law school first. And I don't mean just left-leaning commentators. People of the right do the same thing, just with a different set of terrible cases that prove the Court's fallibility.

The Court has largely failed throughout American history but which way has it failed? Depends on the politics of the pundit assailing the Court.

You know, it's not as if the Justices claim infallibility, and without the judicial branch, everything would be left to shifting partisan politics and nothing would be reserved to the realm of the individual. Why would either conservatives or liberals want that? Whining that the Justices are actually human beings with human minds living in the real world strikes me as infantile, and I really don't think their work would be tolerable at all if they could be the kind of entirely objective abstract reasoners from the text that the Amazon description tells us "most Americans" think they perceive.

I'll just end with a footnote I wrote in a law review article a long time ago:

I have occasionally felt the urge to write a film script about a superhero called Framerman. Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman -- bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies -- clutches at his heart and succumbs.

Citation: "When to Believe a Legal Fiction: Federal Interests and the Eleventh Amendment," 40 Hastings L.J. 1123 n.29 (1989). No, it's not up on line, and what difference does that make? You're not going to read a 1989 article about the 11th Amendment, and neither is anyone else, and, frankly, it would be stupid to do so. This article predates Seminole. I'm just rescuing the footnote, for blog purposes, from the obsolete, quarter-century-old law review article.

The point of the footnote is: You profess belief in neutral, objective judges, but the truth is, if you could really get them, you'd hate them, and you wouldn't trust them with the power we've long given to the real, human judges who are the only kind of judges we're ever going to have anyway, in the real world we live in.

But I'm not saying I think that Purdy and Chemerinsky are babies crying over the lack of ideal judges and naive about the ways of the world. They are law professors, a category of human beings who are at least as political as everybody else.

And by the way, why does The Daily Beast illustrate Purdy's essay with this depiction of the Supreme Court dominated by Jesus?



3 of the Justices are Jewish, and the essay is not about the religious influence on the Court. It must be a literal interpretation of the headline, "God Save the United States From This Anti-Democratic Court." Why gratuitously mock religion and unwittingly disrespect the Jewish Justices?