Book Notes: Justice on Trial

The most important thing about Justice on Trial isn’t the depth of detail on the Kavanaugh drama but the conclusion. Hemingway and Severino point out that the problem is much larger than this one guy and the surrounding drama. The problem is that the Congress is refusing to legislate. If it manages to pass anything, which is rare, it ends up being some vague grand gesture that has to be litigated in the courts.

For the really big stuff, the Congress doesn’t even try to legislate. It outsources the work to the Supreme Court. The justices have to contort themselves into weird shapes to find support for decidedly recent ideas in the Constitution. We are all very much for abortion rights and gay marriage but we also all know that they are not in the Constitution*. SCOTUS had to invent them as constitutional rights because it had no choice. As a result, every SCOTUS confirmation becomes apocalyptic because too much hangs on it. And it shouldn’t.

The judiciary branch has grown to such a ridiculous degree because the legislative branch is in retreat. Look at our Congress. Nobody even attempts to negotiate, build bridges, make things happen. There’s no politics going on. It’s all empty, vapid showmanship. I don’t want to say “erosion of the nation-state” again but what else can it be?

We are looking at these justices as these hugely important, towering figures but they shouldn’t be. The whole way things function is wrong.

I really liked this part of the book because I believe that this is precisely what we should be discussing regarding the Kavanaugh affair. The book is about looking towards the future and not endlessly relitigating past scandals, which is good.

* I’ve been saying this in this space for a decade and everywhere else for longer.

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One thought on “Book Notes: Justice on Trial”

  1. This is not a new problem for Congress and presents a powerful argument for judicial activism. Take the example of Brown vs. Board of Education. 1954 America already had strong support for civil rights reform that was being shot down by a small group of segregationists in control of senate committees (See Robert Caro’s biography of Lyndon Johnson). Part of the challenge for the Warren court was that they were torn between wanting to end segregation while being skeptical as to their legal authority to do so (See Noah Feldman’s Scorpions). One could make a good pragmatic case for the court’s decision that their democratic ends justified their non-democratic means.

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