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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Yale’s Identity Politics Are Calhounian to Their Core

calhoun college

The protestors who pressured Yale University into scrubbing the legacy of John C. Calhoun—racist, slaveholder and forthright apologist for African bondage; statesman, philosopher and critic of excessive executive power and American imperial ambitions; and, unto Saturday, namesake of a residential college at the alma mater where he was valedictorian of the class of 1804—have no palate for moral nuance, so assume they have no taste for irony either. Consequently, they are probably unaware that the identity politics they champion are Calhounian to their core.

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When the Enlightenment and Evangelical Christianity Got Together

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Last week, on January 16, America marked Religious Freedom Day. The day commemorates enactment of the Virginia Statute for Religious Freedom of 1786, a precursor of the First Amendment. Written by Thomas Jefferson, the Virginia statute disestablished religion in the commonwealth—“no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”—and prohibited civil penalties for the expression of religious belief—“all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson saw the statute as one of his three great accomplishments; along with the Declaration of Independence and the founding of the University of Virginia, he directed that it be noted on his tombstone.

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US State Constitutions and the American Contribution to the Theory of Bicameralism

Virginia State Capitol complex - old House of Delegates chamber

With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.

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John Adams’ Rules for Dealing with American Oligarchy

Painting of John Adams by John Trumbull, c. 1792

The verdict of history can be hard to overturn, even when patently unjust. Luke Mayville, postdoctoral fellow at the Center for American Studies at Columbia University, is a young scholar pursuing his own version of the Innocence Project. The beneficiary of his researches is John Adams, who despite his revolutionary bona fides and his manifold services to the new nation, was tagged a “monocrat” and a reactionary apologist for aristocracy by Thomas Jefferson and his partisans. Mayville’s fine first book, John Adams and the Fear of American Oligarchy, almost completely clears Adams of these old, but remarkably persistent, anti-democratic charges.

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Dark Times, the Declaration, and the Despotic Executive

Independence Hall, Philadelphia

It’s been a year since my last little piece on the Declaration of Independence, and what a year it’s been.

On the Right of our political spectrum, one could sum up its events and eventfulness in one word: Trump. A party has been captured by an outsider, the disaffection of millions of its rank-and-file revealed. At the national level, the Grand Old Party is not so grand or even particularly coherent, and some fear it might not last as a party. Something similar can be said of the party of the Left. Substitute “Clinton” and “Sanders” and comparable deep fissures emerge, although perhaps with less likelihood of disintegration.

What light, in terms of principles and manner of thinking about politics, might this context shed?

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Uber Drivers—This Century’s Yeomen of Liberty

One of the great pleasures of using Uber is talking to drivers about why they have chosen to use the service. Almost to a man (and so far all my drivers have been men) they celebrate being their own boss.  They decide when and where they would like to drive and even what model of car they will use.

Their ebullience about Uber is also informed by their previous experiences as employees. Quite a few previously worked for limousine companies and had difficulty getting along with management. One was summarily fired to make way for a nephew of the owner.

Their independence has social and political as well as personal benefits. It is striking in my conversations how aware they are of regulatory threats to their business and of the price of inputs, like insurance. Their knowledge translates into a healthy skepticism of government intervention generally. The political sensibility that comes from being in small business is one of the greatest bulwarks of liberty.

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Hamilton versus Jefferson: A Conversation with Carson Holloway on the Struggle to Complete the Founding

hamitlonThis next edition of Liberty Law Talk is a conversation with Carson Holloway on his new book, Hamilton versus Jefferson in the Washington Administration.

Leftward Drift Makes It Harder for Republicans to Confirm a “Moderate”

Some have called on the President and the Senate Republicans to compromise on the replacement for Justice Antonin Scalia: The President should nominate a “moderate” candidate whom the Senate would then confirm. But any such compromise is likely a bad deal for Republicans. In modern times justices have tended to drift left, unless they were anchored in the conservative legal movement or were already on the left. Ideological ratings of justice year by year show overwhelming evidence of leftward movement. Thus, a moderate today would very likely become at least moderately liberal over time.

There are two reasons for this leftward drift. First, the current of the bar runs left. Thus, justices are surrounded by a  dominant legal culture that pulls in one direction. This is not the first time that such a strong current has frustrated one side of the political spectrum. Despite their 24-year control of the Presidency, Jeffersonian-Republicans were unable to change the course of the Federalist Supreme Court. After nineteen straight years of Democratic-Republican Presidents, the Court even upheld unanimously the constitutionality of the Bank of the United States—the bête noire of Thomas Jefferson.

Second, the accolades of our elites go to justices on the left.

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The Road to Prosperity and the Plans of Politicians

Powerful Economy Concept

The next two Republican presidential debates, including this evening’s, will focus on the economy, a testimony to the weakness of our recovery from the 2007-2009 financial crisis, the continued relevance of James Carville’s campaign advice to Bill Clinton over 20 years ago (“It’s the economy, stupid!”), and the all-but-universal assumption that American Presidents can, should, and must create the conditions for widespread prosperity.

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