Sunday, April 28, 2019

"A Canticle for Liebowitz" and the Supreme Court

Mark Tushnet

Warren Miller's 1959 science fiction novel A Canticle for Liebowitz describes a world taken over by the forces of irrationality. A small group of monks retreat to their abbey with a collection of books saved by Isaac Liebowitz, the last repository of rationalism. The monks study the books for centuries and sporadically re-enter the world in an always-futile hope to re-establish a well-functioning social order guided by science and reason.

Today many liberals who factor the Supreme Court into their political calculations are a lot like the"Order of Liebowitz" in the novel. They too have a group of texts, one that they take to be the true foundation of constitutional law -- scattered volumes of the U.S. Reports numbered 347 (Brown v. Board of Education), 410 (Roe v. Wade), 539 (Lawrence v. Texas), 576 (Obergefell), maybe one or two more.

From these volumes these liberals draw a picture of the Supreme Court as an institution defending minorities against oppression and protecting freedom of expression against unjustified government suppression. They then rely on this picture to worry about policy proposals that in their view would damage the Court's legitimacy -- and thereby, the inference is, weaken the Court's ability to fulfill these honorable functions.

Had the monks retained the full set of U.S. Reports, or even a decent random sample, they might draw a different picture, one in which the Court overall (not in every case, of course) has reinforced oppression of minorities and suppression of speech. There are brights spots in the picture. Notably, Seth Kreimer has ably shown that the Court has done a decent job of policing "village tyrants," local legislators and executive officials who go out of their way to oppress and suppress. But, the picture as a whole is pretty gloomy.

The current Supreme Court has obviously done a bang-up job of protecting Big Pharma and the Koch Brothers and their ilk against government oppression (Sorrell v. IMS Health, Citizens United), and of course Muslims against racist policies (Trump v. Hawaii). And it seems poised to read the Constitution to allow Republicans to adopt policies that entrench the Republican party in Congress and state legislatures while finding Democratic (and democratic) policies unconstitutional.

So, what's the net effect likely to be of weakening the Court's legitimacy? Perhaps (one can always hope) a reinvigoration of a liberal legislative politics about the Constitution's meaning.

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