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Bench Memos

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More on Judicial Supremacy



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Part 2 of my series, “Constitutional Disorder in the Era of Judicial Supremacy,” has now been posted at The Public Discourse.  Here’s a sample:

Because of the nature of the Supreme Court’s work—initiated by aggrieved litigants and not the justices themselves, carried on in esoteric language, and seeming to matter much even to politically aware citizens only two or three times a year—the public occasions and opportunities to reconsider the scope of the Court’s authority in our constitutional order come few and far between. One such occasion occurs when a vacancy on the Court must be filled. Now a great deal of attention is fixed on the Court’s business: its past decisions take on fresh importance, its future direction seems to be somehow up for grabs, and interest in the outcome runs very high across all sectors of society. In the conventional account, this is the “one chance” the rest of us have to affect the course of constitutional decision-making until the next such vacancy occurs. That is a dangerously false way of thinking. But it is true that an opening on the Court gives us an opportunity to re-examine why we are in the habit of thinking such dangerously false things—and perhaps the opportunity to change our habit for the better.

You can read the whole thing here.



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