what worries me

worries Brian Tamanaha, too:

How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?

Lessig seems to have passed that point after the Eldred decision:

I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can.


These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?

Unfortunately, I don’t have any ideas on how to put the judicial-ideological genie back in the bottle.

One Response to “what worries me”

  1. thatbob says:

    Would you say that judicial-ideological activism has been “a slippery slope”?

    No, really. Would you say it? Please? Say it out loud. Slippery slope. I love that phrase.

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