Monday, July 04, 2022

Leiter repeats, and so do I. 

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz.

Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role. Thus, it should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure, there is always media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This antidemocratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent.

What does it mean to say there is very little “law” in American constitutional law?  

Right wing vulgarians say the SCOTUS shouldn't make law. Right wing sophisticates—Leiter's an elitist who defends academic freedom but not freedom of speech for the rest of us—argue that it doesn't make true Law.

"Former friends have recounted that Loughner had a fixation for grammar and words, saying that he challenged Giffords at a previous public meeting with the impenetrable question: 'What is government if words have no meaning?'"

Words have no meaning. Meanings are plural.

Follow the links. You'll get the joke, or you may get the joke. Raz never did, and Leiter never will.

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