The Mythology of the Supreme Court
Lurking in the background of the same-sex marriage cases, I argue in my new Bloomberg View column, is a powerful myth about the Supreme Court: that it has been central to the expansion of freedom and equality in our country. For example, the Court deserves little credit for our tradition of free political speech:
Open political debate has come under attack from government several times in American history, starting with the passage of the Alien and Sedition Acts of 1798. But as Robert F. Nagel points out in Judicial Power and American Character, the courts played no role in ending any of these episodes. They ended for other reasons (like the election of Thomas Jefferson in 1800).
I also go into Brown v. Board of Education and how it obscures the Court’s fairly awful record on race, and conclude with a few thoughts about how this distorted history affects our political and legal debates.