A Modest Proposal for a Political Court

Merrill, Thomas W.

The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is "a product of the substance and perception" that it is a court of law. Thus, frequent overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings are grounded in law. Especially when a controversial ruling like Roe v. Wade is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is "surrender[ing] to political pressure" or "over-nul[ing] under fire." Such a perception, in turn, would lead to "loss of confidence in the judiciary." Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes. If no hope can be expected from the Court on its own initiative, then what should persons who believe in judicial restraint and the rule of law do? One positive step would be to have the Federalist Society, which contains many individuals of this description, cease promoting the idea that legal questions have right answers. Instead, the Federalist Society should dedicate itself to promoting deconstructionism, Critical Legal Studies, feminism, Critical Race Theory, and the widest possible cacophony of liberal constitutional theories. The message conveyed by these enterprises is that the Supreme Court is a political institution. The more widespread this perception becomes, the closer will come the day when the Court behaves like a court of law.


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Harvard Journal of Law and Public Policy

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Harvard Society for Law and Public Policy
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November 13, 2015