"The conservative Roberts majority will no doubt frame future rulings on voting restrictions and gerrymandering as solidly grounded in law and the Constitution."

"And yet it could become increasingly difficult to believe the court is doing law, not politics, if a conservative majority of Republican appointees issued decision after decision that had the effect of helping Republican candidates win elections.... Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court. Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment.... If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process...."

From "When the Supreme Court Lurches Right/What happens when the Supreme Court becomes significantly more conservative than the public?" by Emily Bazelon in the NYT.

I have little confidence that my excerpt will be comprehensible to anyone. One key is to understand that there's a theory that the judiciary is really a political branch, and that for all its posing as operating in a completely different mode — interpreting legal texts — it's really tracking democratic preferences. There's a concern that the new majority on the Court will permit redistricting and various voting law that will help Republicans win elections, putting them in control of the overtly political branches of government. And there's an idea that the Court will notice that those supposedly democratic branches are not properly majoritarian anymore and that distortion will motivate the Court — which is covertly political — to step into the role of representing what it knows to be the true majority.

I'm trying to put the argument in blunter language than Bazelon is using. I see that Bazelon is now the Truman Capote fellow for Creative Writing and Law at Yale Law School, which sounds like a fantastic position. But I wonder, what would Truman Capote write?

ADDED: What exactly is "creative writing"? Wikipedia says:

Creative writing is any writing that goes outside the bounds of normal professional, journalistic, academic, or technical forms of literature.... Both fictional and non-fictional works fall into this category....

I'm all for jumping outside the bounds of "normal" legal writing, though I don't like the term "creative writing." First, "creative" is way overused in our culture. Everyone's child is so creative, and young people accept low-paying jobs that are portrayed as "creative." Second, if you're writing nonfiction, you shouldn't be "creating" your facts. You want to be creative in what facts you pursue and how you present them, but why invite the confusion? The use of Truman Capote's name in connection with writing about law is also interestingly confusing, since Capote — for all his excellent writing style — was known to have deviated from rigorous truthtelling in his nonfiction work, "In Cold Blood." From Wikipedia:

Writing in Esquire in 1966, Phillip K. Tompkins noted factual discrepancies after he traveled to Kansas and spoke to some of the same people interviewed by Capote... Tompkins concluded:

Capote has, in short, achieved a work of art. He has told exceedingly well a tale of high terror in his own way. But, despite the brilliance of his self-publicizing efforts, he has made both a tactical and a moral error that will hurt him in the short run. By insisting that "every word" of his book is true he has made himself vulnerable to those readers who are prepared to examine seriously such a sweeping claim.

True crime writer Jack Olsen also commented on the fabrications:

"I recognized it as a work of art, but I know fakery when I see it... Capote completely fabricated quotes and whole scenes.... That book did two things. It made true crime an interesting, successful, commercial genre, but it also began the process of tearing it down. I blew the whistle in my own weak way. I'd only published a couple of books at that time – but since it was such a superbly written book, nobody wanted to hear about it."