Re: Ruth Marcus’s Phantom Fear

by Andrew C. McCarthy

Beyond Ramesh’s point, and to borrow from Ms. Marcus: “Imagine what would have happened in the aftermath of Dred Scott v. Sanford if the Perry rule were in place.” I suppose we could play this game all day. In any event, the Supreme Court has become at least as much a political institution as a legal one — if it were a strictly legal institution, our confirmation process would not be as heated and politicized, and there would be no demonstrations by interested partisans outside the Supreme Court building. That being the case, why shouldn’t the Court be subject to a political check? My only qualm is Perry’s two-thirds super-majority idea. With the practical reality of a 60-vote requirement in the Senate, I don’t see why it should take two-thirds of Congress to reverse the Court when it only takes a margin of one unelected justice to reverse the Congress and the president. 

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