American Proscenium

Supreme Court Chaos

Nietzsche got it wrong.  God is not dead, but that other mainstay of popular sovereignty and constitutional government in this country, the rule of law, is either finished or on life support.  For decades the finest minds in the law schools and on the bench have argued that several hundred years of legal tradition, in which it was believed that the glory of the law and the Constitution was its fixed nature and that judges should not be in the business of making law, should no longer bind us, and we should wake up to the fact that it ought to be the job of those on the bench to alter the law in the manner they believe best for us.  As Judge (formerly professor) Richard Posner writes in his latest book, arguing for something he calls a “pragmatic approach to adjudication,” judges should simply “try to make the decision that is reasonable in the circumstances, all things considered.”  While judges take an oath to uphold the Constitution, all this means, according to Posner, is that 

The loyalty demanded is to the United States, its form of government, and its accepted official practices, which include loose judicial interpretation of the constitutional text and occasional overruling of decisions interpreting that text.

In a similar vein, Professor Louis Michael Seidman of Georgetown University School of Law has called for scholars and judges, as one reviewer...

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