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Tuesday, October 18, 2005

Why De-legitimizing SCOTUS (via Miers) Might Be Good for America

If pressed to say something non-negative about the Miers nomination, I might argue that any further de-legitimizing of the Supreme Court (through hack nominations, for example) may be good for America.  Here's how:  As soon as American lawyers stop relying on the Supreme Court to preserve our liberal democracy and our liberty, we might start focusing on democratic mobilization, democratic contestation, and politics to shape our futures.  When politics holds the key to our futures and our rights, we all might invest more in trying to convince one another--creating a culture of persuasion--rather than investing in appeals to the nine annointed ones to coerce our visions of democracy, freedom, and liberty on others.

Don't get me wrong: I'm not sure that taking the Constitution away from the courts (in Tushnet's parlance) is necessarily the right social and political organization in the best of worlds.  But I can see real benefits if public interest lawyers sought more social change through grassroots democracy rather than through SCOTUS litigation.  And the more SCOTUS is viewed as a house of hacks, the more likely reformers will be incentivized to take their reforms to the streets and to the politicians where democratic and constitutional (small 'c') change might ultimately be perceived as having more legitimacy.

If Hillel wrote this, I'd surely criticize him for being naive about the possibilities within politics and legislation without a judicial protectorate.  But I've never really disagreed with him that there is a court fixation among lawyers that would be good to mitigate.  Indeed, I've argued as much in this article.  Bad decisions and lame nominations at least forward this agenda.

Posted by Ethan Leib on October 18, 2005 at 01:46 PM in Current Affairs | Permalink


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Amazing: Agree with me completely, while STILL managing to get a dig in! Well done! ;-)

Posted by: Hillel Levin | Oct 19, 2005 7:29:02 PM

You are far more expert on this than I, but don't you have it exactly wrong? Wouldn't a weaker court be easier to exploit? And wouldn't a more predictable court lead groups to use democratic channels to effect the change they desire? (I imagine these are conventional positions).
Maybe your idea is that Miers, if nothing else, should be expected to be an O'Connor-like minimalist: with no proven capacity for legal reasoning, she should be expected to rule only with regard to the parties before her (this is why her "understand[ing] of real people" is an asset), and not to make rule-like prenouncements about the Constitution. But that again suggests that the upshot of her appointment will be more litigation, rather than less. So I guess I still don't understand your point.


Posted by: dan levine | Oct 19, 2005 9:36:43 AM

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