posner_political_court

posner_political_court - 31 THE SUPREME COURT 2004 TERM...

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Unformatted text preview: 31 THE SUPREME COURT 2004 TERM FOREWORD: A POLITICAL COURT Richard A. Posner TABLE OF CONTENTS I. WHAT THE STATISTICS SHOW............................................................................................... 35 II. POLITICAL JUDGING................................................................................................................ 39 A. A Constitutional Court Is a Political Court ...................................................................... 39 B. Aggressive Versus Modest Approaches to Political Judging in Constitutional Cases......................................................................................................... 54 III. SOME ALTERNATIVE CONCEPTIONS OF THE COURT................................................... 60 A. The Court as Expert Administrator.................................................................................... 60 B. Institutionally Constrained Justices................................................................................... 75 C. The Court as Moral Vanguard ............................................................................................. 81 D. The Cosmopolitan Court ...................................................................................................... 84 IV. A PRAGMATIC COURT?........................................................................................................... 90 32 THE SUPREME COURT 2004 TERM FOREWORD: A POLITICAL COURT Richard A. Posner The notion that the genuine values of the people can most reliably be discerned by a nondemocratic elite is sometimes referred to in the litera- ture as the Fuhrer principle, and indeed it was Adolph Hitler who said that [m]y pride is that I know no statesman in the world who with greater right than I can say he is the representative of his people. We know, however, that this is not an attitude limited to rightwing elites. The Soviet definition of democracy, as H.B. Mayo has written, also in- volves the ancient error of assuming that the wishes of the people can be ascertained more accurately by some mysterious methods of intuition open to an elite rather than by allowing people to discuss and vote and decide freely. Apparently moderates are not immune either. John Hart Ely 1 cholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the official explanations for judicial phenomena proffered by insiders in a word, its realism. 2 To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific ap- proach, the Supreme Court is an object of observation rather than of veneration or condemnation. The social scientist asks, without precon- ceptions drawn from the professional legal culture, why the Court de-...
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posner_political_court - 31 THE SUPREME COURT 2004 TERM...

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