(Anti)Canonizing Courts

Greene, Jamal

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans' current self-conception and the role our forebears' social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in producing them and diminishes the roles of culture in creating them and of social movements in overcoming them. This essay argues for approaching these decisions as ordinary products of political culture rather than extraordinary products of judicial malfeasance. Doing so honors those who struggled for progress and may invigorate our political imagination in the present.


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MIT Press
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June 2, 2015