Tuesday, June 4, 2024

#156 / Politics And The Supreme Court


The New York Times opinion column that I have linked below, and which I have excerpted in this blog posting, is well worth reading. The column was written by Jesse Wegman. It is titled as follows, online: "The Crisis In Teaching Constitutional Law."

I was struck by Wegman's column because it deals with what has become a real problem for those (including law professors) who have believed that our system of democratic self-government is dependent on a Supreme Court whose decisions are, emphatically, the very opposite of "political." That is the postulate upon which we have based our faith. Now, it's hard to argue that this is actually true.

Here is how Wegman outlines the issue in his column: 

If you attended law school at any time over the past half-century, your course in constitutional law likely followed a well-worn path.... 
It was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity than in imposing a partisan agenda....
Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party. 
Larry Kramer, a widely respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court’s divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that the majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result. 
Professor Kramer was the dean of Stanford Law School at the time, and after the Heller ruling, he told me recently, “I couldn’t stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis.” First-year law students, he felt, “should be taught by someone who still believed in what the court did" (emphasis added).

We'll, with all due respect to Professor Kramer, I am not sure I think that his decision to quit, and let someone else teach those first-year law students, was very good idea!

If the Supreme Court is, in fact, nothing but a bunch of politically partisan justices who systematically and "intentionally warp history to reach a preordained result," a body that isn't, actually, independent, but whose decisions "virtually always align with the policy priorities of the modern Republican Party," then I would like to think that those who are teaching law students would tell them the truth - not pretend that some ancient "myth" is still in force.

Can our democratic system of self-government survive if the Surpeme Court is going to base its decisions on the same kind of "partisan politics" that shapes both the Congress and the Executive Branch?

Well, my answer is, reluctantly, "yes." 

This blog is not named, "We Live In A Political World" for nothing. My blog bears that title because I think it's important to understand the reality of where we really are. It is not, actually, helpful to pretend that we are somewhere else. An "equation" that tells us how our system works has been outlined in this blog on a number of occasions: 

Our government is, ultimately, "political," and the judicial branch of our government is just as "political" as the legislative and the executive branches are. Let's not try to fool ourselves - or young students. Let's admit it, and deal with it. 

Congress is clearly sold out to "the money power," and the presidency is, too. Well, what a surprise! The Supreme Court and the judicial branch aren't any different. 

Again, with all respect to Professor Kramer, I am not in favor of pretending that things are different from the way they really are. I am not in favor of trying to fool young law students into believing something that isn't, actually, true. 

I am in favor of ordinary people ("we, the people") reasserting our own political power. We have a "representative" government. Law professors can, and should, still teach their students that. That's true! But when someone you have appointed as your "representative" isn't doing what you want them to do, it's time to make a change. It's time to stop "electing the people, who hire the people, who then actually run our lives for us." 

No shortcuts are available. What is required (and I think I have mentioned this before, pretty recently) is that we must pledge "our lives, our fortunes, and our sacred honor" to the task of reestablishing genuine self-government in these United States of America. That is the only way we will be able to take back control of the government that belongs to us.

Wringing our hands and fretting about it is not going to help! Lying to law students won't help, either. 

What will? Reengagement with politics! Getting organized to make the changes we need to make!

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1 comment:

  1. Amen! The TRUTH will make us free. The Supreme Court is corrupted for a long time to come, thanks to Mitch McConnell, a non-democratic partisan dictator. We are the same as those we criticize.


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