Bench Memos

Unfit for Pedagogy?

A cartoonish leftist tract masquerades as legal scholarship.

The leadership of Chief Justice John Roberts has disappointed many conservatives, especially his strained opinions upholding Obamacare, in NFIB v. Sebelius (2012) and King v. Burwell (2015). Presidential candidate Senator Ted Cruz (R., Texas), who supported Roberts’s nomination, now says that his appointment was a mistake. It is ironic, therefore, that Albany Law School professor Stephen Gottlieb has written a book-length critique of the Roberts Court, from the Left. Gottlieb’s book, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press 2016), is a tendentious diatribe that excoriates the Roberts Court (even some unanimous decisions and opinions written by the Court’s liberal members) for particular results that do not comport with Gottlieb’s left-wing policy preferences.

If the book were written as a candid political manifesto, Gottlieb’s thesis would at least have the virtue of intellectual honesty. Unfortunately, he uses pseudo-academic jargon to present his critique as an exercise in “political science” and “constitutional theory.” Gottlieb contends that, properly understood, the legitimacy of the Constitution depends on outcomes that promote “democracy” (which he defines as progressive results) and lead to “contemporary justice” (ditto). Voila, the Court needs to return to New Deal era jurisprudence (in particular footnote 4 to United States v. Carolene Products Co. (1938)). Deviation from this path, he warns, “leaves us defenseless against the enemy within.” Sadly, such dreck passes as scholarship in today’s legal academy.

I review Gottlieb’s book for the Library of Law and Liberty, in a post entitled Misfiring on the Roberts Court. I am critical of the $55 (!) book, which is truly dreadful, but also question the judgment of the publisher. My review ends with this question: “What were the editors of New York University Press thinking?”