Wednesday, April 03, 2024

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

In a recent New York Times essay, Marc De Girolami, a law professor at the Catholic University of America, offered a novel account of the jurisprudence of the contemporary Supreme Court: Its unifying theme is “that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.” The court “has relied on traditionalism to good effect for many decades,” making our laws “respectful of the shared values of Americans over time and throughout the country.”

This is a clever but perverse story that gets matters exactly backward. Since Donald Trump’s three appointments, the Supreme Court has become a major force in American politics. The distinguishing characteristic of today’s court is its seeming indifference to what ordinary citizens care about.
I explain in a new column at The Hill.

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