On "A Court of Two Crises"

An HLS Volume Celebrates the Declaration's 250th Anniversary

To celebrate the 250^th anniversary of the Declaration of Independence, Harvard Law School faculty, led by Alexandra Natapoff and Guy-Uriel Charles, have composed America Unfinished, a collection of short essays on an enormous range of topics such as preserving democracy, updating for artificial intelligence, describing American identity, checking corporate power, reforming criminal justice, reversing the decline of physical community, and much, much more.

My chapter is entitled “A Court of Two Crises,” and it reflects on the twin challenges recently faced by the Supreme Court and the judiciary as a whole. One crisis has to do with the risk that a populist presidency might shatter the rule of law. The second crisis stems from the courts’ need to preserve their own legitimacy even as they too are caught up in political and legal polarization.

Here is the gist of where the argument goes:

[If the Supreme Court’s] critics respond by weakening the courts, they may only set the stage for even greater populism and attendant disregard for the rule of law. For it is hard to deny that the federal judiciary, overseen by the Supreme Court, has repeatedly checked the present administration. Sometimes the justices themselves have acted; other times, they have left lower court rulings intact. Examples have involved free speech, due process, deportations, national guard deployments, birthright citizenship, partisan impeachments, tariffs, the Federal Reserve, and still more measures not even attempted under the judiciary’s watchful eye. So even if the courts could have done more, they have certainly done quite a bit.

For all its faults, then, the federal judiciary has come to play a critical counter-majoritarian role within an increasingly majoritarian government. …

On reflection[,] each crisis offers a way out of the other. If it can navigate our time of polarized populism, the judiciary may thereby solve its own legitimacy problem. Scholars have argued that judicial independence largely springs from the long-term incentives of partisan actors. Parties in power today anticipate relying on the judiciary once they are out of power tomorrow. And, again, courts have lately offered respite for the loyal opposition. If that pattern persists and political tides turn, the judiciary may emerge stronger than ever.

Co-blogger Steve Sachs also contributed an entry, entitled “The Living Hand.”

I encourage you to page through the whole volume or check out one of these webpages on the project. I leave you with this enticing, amusing blurb from Professor Michael McConnell:

This thought-provoking collection of 62 short essays — some of them odd, some provocative, some insightful, and some even beautiful — is a remarkable gift to the nation on its 250th birthday.