How to Fix the Worst Type of Supreme Court Opinion
Slate · L · trust 41/100
This is part of Amicus and Slate’s “ By the People ” series, which explores how the American people can reclaim the Constitution—and the law—from this monarchical Supreme Court.
In the final episode of “ By the People ,” our summer series on popular constitutionalism, Amicus co-hosts Dahlia Lithwick and Mark Joseph Stern spoke with New York Times columnist Jamelle Bouie about how politics are essential to escaping our current Supreme Court–caused constitutional mess. Ultimately, they conclude, finding a new constitutional meaning that actually embraces the public’s true understanding of the document requires returning to our old understanding. The following excerpt of their conversation has been edited and condensed for clarity.
Mark Joseph Stern: As a serious student of American history, do you have a theory for why Americans, in the course of our lifetimes, came to believe that these nine unelected judges have the final and irrevocable say on what the Constitution means? Do you have a theory for why this public passivity is so ingrained?
Jamelle Bouie: I think it’s entirely historically contingent. It’s very recent, and I would tie it to a handful of things. The first is that you had the Warren court emerge in the middle of the 20 th century as a court that was trying to use judicial power to expand rights, protect the rights of minorities, expand procedural rights, all sorts of things.
You had, at the same time, a liberal elite, both in the academy and in politics, that was super nervous about the ability to politically defend these things, and so looked to the Warren court to do this, and then became extremely solicitous of judicial power when it seemed like the political tide was turning, right?
I think you also have, as this is all happening, a kind of professionalization of the Supreme Court. It’s interesting to look back prior to 1960, 1950, and just see the professions and the things that justices did prior to being on the court. And a lot of times they had very little actual experience on a federal bench. A lot of times they were practicing lawyers, but mainly politicians. Penn State historian Rachel Shelden has a great book coming out about this quite soon. In the 19 th century, it was understood that this was a political body, these were political actors, and they had political experience, and that continued into the 20 th century.
Earl Warren, to start, was governor of California, and that kind of political experience wasn’t uncommon. In the last 50 or 60 years, the court has become much more professional. The justices either were long-serving members of the federal bench or are put on the federal bench prior to being elevated to the court to give them that experience. They all come from a handful of elite law schools. Their careers are in the law. Their professional lives, their personal lives are all tied up in elite law. What that professionalization does is create the impression that the court is this nonpolitical body of people whose job is to point their big brains at constitutional questions.
Dahlia Lithwick: It’s interesting because you are echoing this theme that professor Larry Kramer—who coined the term popular constitutionalism—raised: This doesn’t actually become a problem until the political right and the political left agree that the court is divine, and that can only happen after the Warren court revolution.
There just didn’t used to be 300-page opinions. Decisions were seven pages, and Brown v. Board could be printed on the front page of a newspaper. The idea that this has to be weighted down with law-review articles and footnotes and arcana about the history of a three-part test is a way of obfuscating, right? Making it seem as though there is no way that the former governor of California could do this because not even the smartest professor at Yale Law School can do this. In that sense, the court works hand in glove with the American people to create this mythology of the oracular balls-and-strikes court.
If we’re on the same page about the role of the high court, can we agree that the answer to the question of who actually owns the Constitution, the one we started with, has to be: the people themselves?
Jamelle Bouie: The Constitution belongs to the people themselves. To your point about the length of opinions, I want to add the shrinking number of opinions, right? They decide fewer and fewer cases every year. People may look at that and see it as sort of a technocratic or procedural thing.
I think one should see it as a political thing as well, right? In the 19 th century and the early 20 th century, when the court has much less control over its docket—but is deciding hundreds of cases with these short opinions—they’re doing it in part because those earlier courts did feel the need to be more responsive to what was happening in the world at large, right?
They couldn’t just sit on stuff, because they were part of an active political process. Dropping 100-page opinions four or five months after the case is heard on cases that are of immense public importance is both a way to create the impression, again, that they’re these legal gurus, but also another way of separating the court from the public.
Mark Joseph Stern: One really recent and great example of the truth that a longer opinion is not necessarily a better opinion comes in the birthright citizenship case and the set of decisions from that. Clarence Thomas’ dissent is more than three times as long as the majority opinion and it’s also way more than three times worse. Clarence Thomas is just sort of randomly cherry-picking these arcane figures who wrote in their diaries or said in speeches offhandedly that they thought that birthright citizenship didn’t apply to temporary visitors, and then stitching it all together and declaring it to be this grand constitutional theory.
If you aren’t trained in the law, frankly, if you don’t have, like, that sort of BS radar, you might read that and…
Read the original at Slate →
Open in TruthVane →