Is the Supreme Court a Court?

Columns at the U.S. Supreme Court

Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.

Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.

Let’s unpack that a bit.

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Democrats Need a New Supreme Court Nomination Playbook

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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A Neo Dworkinian Argument for Originalism

A while back I did a bunch of posts on the relationship between positivism and originalism.  At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it.  I am finally doing the post.

Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification.  Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it.  One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice.  But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds.  The overall best interpretation would be based on both fit and justification.

Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed.  This type of originalism is both attractive normatively and does a reasonable job of fitting the practice. 

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Hobby Lobby without God

Ronald Dworkin’s posthumously published Religion without God could instead have been called Law without Religion.

The book is founded in a great hope: that religious believers can be persuaded that they have more in common with atheists than they may think, and vice versa. Dworkin believes that “the zealots have great political power in America now” and that “militant atheism” is “politically inert” (though it is, he adds, “a great commercial success”!).

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Structure, Rights, Gay Marriage, and the Future

The late Ronald Dworkin might have seen last week’s arguments as a repudiation of his life’s work. His project was all about law (very loosely speaking) as a high-toned principle, imported with Herculean effort into open-ended rights guarantees.  That pitch, hurled at the Court by the unlikely Olson-Boies team, ended up wide off the plate. Instead of grand rights claims, questions of constitutional structure took center stage: standing; federalism; justiciability.

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A Republic Worthy of Ronald Dworkin

The death of Ronald Dworkin on February 14, 2013 provides an occasion to reflect not only on his contributions to legal philosophy, but to the entire enterprise of jurisprudential theory from the point of view of progressive thinkers.

By the time Dworkin collected a decade’s worth of his writings into Taking Rights Seriously in the late 1970s, he was responding to a deep need within the liberal intelligentsia. From the tumult of the 1960s and early 70s, liberals felt the need to substitute, once and for all, high principle for politics, yet at the same time not abandon the notion that all “truth”—and constitutional norms—must be time-bound, and permitted to grow as circumstances and progressive insight dictate.

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A Course on Ronald Dworkin

There have been many discussions of Ronald Dworkin’s work in recent blogs.  For some examples, see Jim Fleming, Cass Sunstein, and Richard Epstein. Many people consider Law's Empire to be Dworkin's most important work on law.  For those interested in a college level course on the book, I recently listened to this one.  It is a 14 lecture course that spends 7 of the lectures discussing Law's Empire.  (The first several of the lectures are on legal positivism and H.L.A. Hart, and the last 4 are on Bruce Ackerman’s constitutional theory.) At times, I found the course frustrating, but it is hard…

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The Passing of Ronald Dworkin

The legal giant, Ronald Dworkin, has passed on.  I was interested to read the New York Times obituary to see what a non-specialized paper would see as his most important contribution.  Significantly, the obituary did not highlight his contributions to jurisprudence until the latter part of the review.  Instead, the article led with the following: Professor Dworkin’s central argument started with the premise that the crucial phrases in the Constitution — “the freedom of speech,” “due process of law,” “equal protection of the laws” — were, as he put it, “drafted in exceedingly abstract moral language.” “These clauses,” he continued, “must be…

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Constitutional Interpretation as Fairness: Ronald Dworkin and the Axioms of Obamacare

Ronald Dworkin, a liberal supernova who has long radiated more heat than light, seems to be fading faster than we knew. In a recent piece in the The New York Review of Books (“A Bigger Victory Than We Knew,” August 16, 2012) he embraces a liberalism so platitudinous it would make even his academic colleagues blush, if he taught anywhere other than a top-10 American law school. For him, the Affordable Care Act satisfies “a fundamental requirement of political decency.” Obamacare’s baffling and formidable mixture of mandates, regulations, and taxes can, it seems, be derived almost syllogistically from a conception of justice as fairness, though Dworkin also claims that the scheme “is less efficient and rational than a single-payer system like Great Britain’s” (something a legal philosopher oughta know). 

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Ronald Dworkin on the Supreme Court’s Health Care Decision

Ronald Dworkin has published a New York Review of Book Essay on the Supreme Court’s health care decision.  The essay has all of the characteristics of the typical Dworkin NY Review essay: it stakes out the liberal position, argues for it with power and verve, but in the end is often to me unpersuasive.

Dworkin spends some time criticizing Chief Justice Roberts’s opinion.  As readers may remember, I am no friend of his opinion, but I don’t agree with much of Dworkin’s criticism.  Let me just discuss one issue.  Dworkin is upset that Roberts first concludes that the Congress does not have the power to impose the mandate under the Commerce Clause before concluding that Congress does have the power to do so under its Taxing Power.  Dworkin writes:

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