198. Progressive Judicial Institutionalism

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I wanted to use today’s “Long Read” to flag (and respond to) a provocative essay published last Friday in The Guardian by Harvard law professor Ryan Doerfler and Yale law professor Sam Moyn, under the headline “It’s time to accept that the US supreme court is illegitimate and must be replaced.” Although Doerfler and Moyn have been beating this particular drum for some time, what’s new about Friday’s essay is the sharp criticism they direct toward “liberal lawyers,” specifically Penn law professor (and Strict Scrutiny co-host) Kate Shaw and me, who, in their words, “have focused their criticism on the manner in which the supreme court has advanced its noxious agenda,” rather than the noxiousness of the agenda itself, at least in part because, according to Doerfler and Moyn, we’re worried about undermining the Court’s legitimacy.

As they write (referring to one of my earlier posts), we worry “that concluding the supreme court is beyond redemption is too close to ‘nihilism’ about the constitution, or even about law itself.” They, on the other hand, are unabashed: “In Trump’s second term, the Republican-appointed majority on the supreme court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off.”

Below the fold, I offer two distinct responses to Doerfler and Moyn. The first is to correct their depiction of what I actually believe (I wouldn’t presume to speak for Professor Shaw, although my suspicion is that our views here largely align). I have not exactly been ...