Posted by Orin Kerr:
Sunstein on the Direction of the Supreme Court:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184362192
Over at the [1]The New Republic's Open University blog, Cass Sunstein
has an interesting post about the future direction of the Supreme
Court.
I think there's a key distinction underlying Sunstein's post that
needs to be brought out here: the difference between the relative
political orientation of the Justices and the relative political
orientation of the law. They are related, but they are not the same.
To see the difference, consider a very highly stylized example.
Imagine in Year 0 a majority of the Court is very far to the left, and
and as a result key areas of law are pushed quickly to the left. Now
imagine that ten years later, a majority of the Court is only
moderately to the left, and that now the law is being pushed only
slowly to the left.
So is the new Court "conservative" or not? It depends how you look
at it. The net effect of the new Court is still to move the law to the
left in key areas, just more slowly than before. At the same time, the
political orientation of the Justices will have moved to the right:
the new Court will be much more conservative than in the old days of
Year 0. The result would be a Supreme Court that people call
"conservative" even if the effect of the Court's decision is to move
the law to the left. (To be clear, I'm not saying that this is exactly
what happened with the Warren Court, and no, I'm not trying to endorse
such a political view of the law; this is just an illustration to show
the distinction.)
I wonder if this distinction explains why the public perception is
different from what Sunstein suggests: my sense is that Cass is
focused on the changing orientation of the Justices, whereas the
common critique is more focused on the changing positions of the law.
References
1. http://www.tnr.com/blog/openuniversity?pid=123906armax.com/
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