I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.
I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.