Liberal Law Professors No Longer Love the Supreme Court
Have you noticed this trend? Things used to be so different.
Mark Pulliam writes at Law & Liberty:
Legal Progressives Have Lost That Lovin’ Feelin’Liberal law professors used to love the US Supreme Court. For half a century, they applauded activist decisions, proposed new theories of “noninterpretive” jurisprudence, and blew kisses to the Justices most responsible for steering the Court to the left—e.g., Earl Warren, William Brennan, William O. Douglas, and Ruth Bader Ginsburg. In books such as Gideon’s Trumpet (1964), the Warren Court’s novel decisions extending unprecedented procedural rights to criminal defendants were hailed as exemplars of wisdom and enlightenment. In a prior era, the job of “Supreme Court correspondent” for newspapers such as the New York Times and the Washington Post consisted of enthusiastic fandom—applauding every doctrinal innovation advanced by the liberal majority on the Court. This seductively-powerful flattery was dubbed the “Greenhouse Effect.”Then, abruptly, the Left’s devotion to the Court turned sour. Seemingly overnight, liberals spurned the Court, reminding observers of the song “You’ve Lost That Lovin’ Feelin’.” After decades of devotion, progressives have lost their “lovin’ feelin’” for the Court. As the song goes, “Now it’s gone, gone, gone.” In contrast with their previous ardor, liberal Democrats are questioning the legitimacy of the Court and proposing court-packing schemes, term limits for Justices, and other measures that were once the province of conservative critics of judicial activism—measures that liberals formerly condemned as “threatening the independence of the judiciary.” What happened? Stated succinctly, the “rule of five”—Justice Brennan’s cynical shorthand for the number of votes needed to form a majority—has turned against progressives accustomed to having their way. To their considerable chagrin, President Donald Trump’s appointments flipped the Court.With the addition of Trump-appointed Justices Gorsuch, Kavanaugh, and Barrett, the Court’s long-suffering conservative minority is now in charge. When brazenly-activist lower court judges abused their authority by issuing nationwide injunctions in cases challenging President Trump’s immigration policy and other matters, the new conservative majority sometimes had to issue orders vacating such erroneous rulings—to the dismay of Trump’s vociferous opponents. The reversal of Roe v. Wade in Dobbs last year removed all doubt that the tide has finally turned on the Supreme Court—and not coincidentally so has the tenor of scholarship from the legal academy. Like a jilted lover, the left-wing professoriate holds the Court in scornful contempt. University of Texas law professor (and CNN analyst) Stephen Vladeck’s The Shadow Docket is a prime example.
CLICK HERE FOR FULL VERSION OF THIS STORY