Banana Republican

I found myself disagreeing with some of the points made in co-blogger Josh Blackman’s post this morning entitled “I could carve a judge with more backbone out of a banana.” Instead of a point-by-point rebuttal, here is a set of more general observations:

1. Law is not like the game of Risk, a game of global domination. No legal principle will yield you all the results you want, and principled judging will never yield total domination for any political party or ideology. Anyone who expects that will be disappointed.
2. The line taken on Justice Barrett bears no resemblance to her actual body of work on the Court so far, which is absolutely sterling, regardless of whether you agree with her on the outcome of any given case. Here, for example, is a more cogent analysis by John McGinnis.
3. The suggestion that what we need in Supreme Court nomination hearings is more “courage” in an idiosyncratic sense (n. courage, 1a “owning the libs”) is exactly wrong. Yes, courage is a virtue, but like most virtues it is not reducible to performative spectacle. Supreme Court nomination hearings have already moved too far in the direction of cable news meets WWF. That is a progression to arrest, not to pursue as if it were the path of enlightenment.
4. When we evaluate the work of the justices, I am almost tempted to say we should care more about their opinions than their votes. The votes matter, of course. But in current practice, and especially when so few cases are being decided by the Court, it is the rationale and argument expressed in the opinion—with its craft or absence of craft, and its principle or absence of principle—that drives the development of the law. To treat judges as fundamentally being vote-casting officials is a symptom of treating them as legislators.
5. For legal scholars, there is value in analysis that does not fully collapse into the analyst’s perspective on the merits. We should be able to make analytical claims about what the justices are doing—critical, sympathetic, both, whatever—that stand on their own apart from whether the author thinks the Court is right on the merits. Otherwise we run the risk that our legal analysis will shade into station identification and more cowbell.

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