That a Yale con law person wrote this on July 2 of this year, in the Atlantic, just further confirms for me that the legal academy, or at least its elite Con Law branch, simply does not seem to be up to the task the current political moment demands.
The Court has always been political, obv, but the radical nature and goals of the current majority’s politics are worth highlighting—and have been clear for *years*.
Yet I feel like I’ve seen little effort to map out how that power gets *resisted*.
Like, fighting the Originalist fight on their own alleged grounds—what did the Founders *really* mean—struck me as risky, bc the Court had made it clear (and the immunity case glaringly obvious) that history mattered to them only when it helped them; it’d be ignored otherwise.
So:
What I’d have liked to see is more stuff that the lower courts and other branches can turn to to resist a lawless and outcome-driven Court.
Like, are there historical examples of lower courts aggressively pushing back? Of Congress or POTUS undermining Court overreach?
History not as part of a legal argument, which we know SCOTUS will ignore at will, but history as mapping out a set of tools—and providing legal, historical, and doctrinal justification for those tools—that other actors can then use to resist, undermine, and thwart six lawless judges.
And even if this was sarcastic—and in its broader context (and based on other things said abt other justices) I’m dubious it was—the piece itself seems to believe saying “this is wrong!” is a reply that might stick
It will not. This is abt power, not law.
So we need to empower—w PLANS—opposition.
