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Friday, October 21, 2011

The Passive-Aggressive Virtues

As part of a series of papers reflecting on the post-September 11 decade (and in light of next month's fiftieth anniversary of Bickel's Harvard Law Review Foreword), the Columbia Law Review Sidebar has posted an essay by me titled "The Passive-Aggressive Virtues."

I'll leave the details to readers, but the gist of the paper is that the Supreme Court's approach to terrorism cases over the past decade has not been activist or passive as a general matter, but has instead featured repeated judicial intervention when institutional self-preservation was at issue, but withdrawal (bordering on abdication) in cases more purely raising the "merits" of particular counterterrorism policies. Although the paper doesn't take an absolute bottom line on whether this is a "good" or "bad" thing, I do try to suggest ways in which this kind of passive-aggressive judicial decisionmaking may not have as salutary an effect as most might think--and ways in which it might not be better than the (perhaps equally unappealing) alternatives.

As always, I'd welcome reactions/comments/etc.

Posted by Steve Vladeck on October 21, 2011 at 12:01 AM in Article Spotlight, Constitutional thoughts, Steve Vladeck | Permalink


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An interesting perspective, and of course, the title will attract attention.

Still, I have strong reservations about injecting psychobabble nomenclature into an analysis of a legal topics. One can characterize a court decision as sound or unsound based on its logic, on precedent, and so on. But how can you tell if a decision is "passive-aggressive" or "narcissistic" or "neurotic"? Looks like a wide-open door to fuzzy thinking to me...

Posted by: Bill Grayson | Oct 24, 2011 9:56:46 PM

It's a great, great title for an essay.

Posted by: D.Schleicher | Oct 21, 2011 7:25:18 AM

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