From TPM Reader BM …
I’m not a legal academic, but I was a pretty fancy pants lawyer – Harvard Law magna cum laude, federal clerkship, DOJ Civil Rights Division, AUSA for a decade doing public corruption cases, litigation partner, university general counsel’s office, etc.
I’m not sure I can describe the level of despair among many of my contemporaries.
I was discussing this last night with a retired ACLU lawyer and a retired big firm litigation leader.
We were trained by law professors who – while legal realists – mostly believed that law was something different from politics. While they recognized that politics and other factors affected judges, they believed that judges should endeavor to articulate neutral principles of decision, and apply them to facts regardless of the parties involved.
We understood that the Warren Court was different from the Burger Court, and that there would be advances and counterforces. But we also understood that even Warren Burger thought it was his job to find a principle of decision that was fairly grounded in the constitutional (or legislative) text and history, and that could be applied across the board. United States v. Nixon was just one example of the Court applying “law” and not just partisan politics.
That conception is irretrievably broken, and not likely to come back. Shelby County, the Trump immunity decision, Callais, and the post-Callais treatment of Purcell have torn away any illusion that this Supreme Court views its job as law and not politics. As you know, the Court’s dishonesty about the Reconstruction Amendments is particularly horrifying. These decisions, among others, have destroyed much of the work my contemporaries thought that we were doing as lawyers.
Even if Democrats somehow achieve a trifecta, abolish the filibuster, expand the Court, and pack it, nobody in the academy or elite bar – or the public – will accept that the Court’s decisions are “law” and not “politics.”
It’s difficult to see how the bar’s acceptance of the idea that the Supreme Court (mostly) applies neutral principles can return. The destruction to the Court’s legitimacy, its reputation, and its ability to perform a constructive role in our scheme of government, will take decades to restore – if it can be restored.
