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The Death of an Illusion




The United States seems to have lost a comforting illusion. The Republican trickery of keeping a seat open for a year until their own guy could fill it, then four years later rushing through a confirmation because ... the next guy couldn't be allowed to fill it -- this has been rather hard on the notion that Supreme Court Justices are in some important sense above the grubby world of politics.

Should we regret the loss of that illusion? 

In a book I wrote decades ago, about the history of the politics of the Supreme Court, focusing on the period from FDR to George H.W. Bush, from the court-packing plan to the Clarence Thomas hearings, I took a broad position I called "minimal formalism." 

A full-blooded or maximalist formalist would answer "yes" to this question. Indeed, he would probably say, "It has not always been an illusion, for important parts of American history it has been the truth -- we should regret, first, the fact that it became an illusion and, second, the fact that the masses have wised up to its illusory character."

That is what, for example, Christopher Langdell might say, were he alive and following the news today. But he'd also be almost 200 years old. And I don't know any 200 year old men who are especially lucid.

A legal realist would say No" to the above question. I'm thinking of folks like Roscoe Pound. He would say that politics is what powerful people and those who are challenging their power do in fact. He would say that judges are a subset of "powerful people" so what they do in fact is definitionally politics. Any chasm we try to establish between judges and politics is itself an illusion, and generally a weapon elites use against the rest of the population. It is best that the non-elites have wised up. 

As a minimal realist, I am committed to threading this needle. I believe that for some purposes legal reasoning is, and is likely to remain, distinct from political calculation. To take this distinction for granted is to suffer from an illusion, and we should desire the enlightenment of anyone who does so. But to believe that the distinction does not exist is another illusion, and we should regret the fact that people are falling into it. 

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