My Collected Supreme Court Commentary for the New Term

Tomorrow marks the beginning of the new term at the Supreme Court. It is also the first Monday in Oct. Over the last few weeks I have received various comments on the Court which I thought I would collect here.

The first, and possibly best, episode of Divided Argument’s newest season, are now available.

The first episode, Maoist Takeover, was recorded at William & Mary Law School as part of their Scalia-Ginsburg Collegiality Speaker Series, and focuses on how to engage with people across profound disagreement, as well as on the Supreme Court’s shadow-docket decisions in Yeshiva University v YU Pride Alliance.

The second episode, Horse Sausage, just dropped today and it previews the extraterritoriality/dormant commerce clause case about California’s pork regulations, National Pork Producers Council v. Ross.

I find myself drawn into more general Supreme Court commentary. On this Harvard Law School virtual panel, I was joined by Amanda HollisBrudsky and Leah Litman on “Law and Politics in Roberts Court”. Janai Nelson and I discussed the controversial position that even though Justices were appointed by politicians, the Court tries and pursue a law vision that is independent of politics.

On Bill Kristol’s show Conversations With Kristol, I had a more extensive discussion about the Court and the state of institutions in general.

Finally, Ruth Marcus of Washington Post asked me to interview her. The result was this paragraph in her opinion essay regarding the next Supreme Court term.

“Fearless.” William Baude, University of Chicago law professor, uses this adjective to describe the court. He believes it’s a good thing. He stated that the court was not ignoring difficult cases. “Change happens. Politics put new justices in court, which is how it’s supposed to function. Everyone knows that the consequences of putting on new justices to the court, who differ from the existing justices, are clear. This is something that the court should not try to protect itself against.

The passage received a lot attention on Twitter. However, the best response I’ve seen is from Richard Re beginning:

And ending

You can also find Rick Pildes’s, Orin Kerrs’s older posts on the topic of judicial bravery. Scott Alexander also has “Against Bravery Debates”.

All of this leads me to conclude that it is probably not useful to attempt to describe one Court or set if Justices as being more fearless than the other. As with discussions about law and politics, many of these descriptions may ultimately reduce to fundamental legal disagreements over what law is, and the requirements of judges.

That’s all for now. You can find more information about the Court’s role in my articles The Real Enemies of Democracy and Supreme Court Reform (Reflections of an Supreme Court Commissioner)