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Jedediah Purdy @JedediahSPurdy
, 11 tweets, 3 min read Read on Twitter
Thread: There are important arguments around from @tnycloseread, @DavidLeonhardt, @ezraklein, & @samuelmoyn on how to approach the Sup. Ct.'s prominence, polarization, and politicization. I think all make powerful cases, but here's a different approach. nyti.ms/2N26ShB
2/ History suggests the Court has usually been involved in partisan & power politics, & that ideas about its proper "non-political" role necessarily depend on the political victory of a given vision of what is politically on the table and what is constitutionally settled.
3/ FDR & the New Deal massively unsettled the Court's role, & his justices openly theorized the importance of majorities' shaking up & challenging the Court.
4/ The Court of the Civil Rights era had to fight for its legitimacy--& that legitimacy was ultimately secured by the political victories of the Civil Rights Act, the Voting Rights Act, federal enforcement of desegregation, & ultimately the bitter victory of conservatives ...
5/ ... getting on board with the "color blind" interpretation of Brown v Board of Education.
6/ Fundamentally, the widespread idea that Americans have usually respected the Court as an exemplar of democratic legitimacy is a product of a few Cold War decades & un-selfaware nostalgia for that period.
7/ Substantively, the Court has been in an interregnum struggle over its role for years now, with the norms from an era of centrist hegemony steadily eroded by an insurrection from the right. McConnell's treatment of Garland was the culmination of a long campaign.
8/ This is why I think the politically realistic thing now is to work for a new version of fundamental principles of democracy & equality, sketched here, which have to succeed politically to succeed in stabilizing the Court & Constitution--just as all previous versions have done.
9/ I'd add that the non-democracy & unaccountable character of the Court has always been problematic for democracy, & often understood as such. It makes the current struggle over accountability for sexual & gendered violence & harassment even more intense ...
10/... because of the prospect that a longstanding set of norms that need to be uprooted yesterday might be installed via a lifetime appointment into a Court where temperament & general outlook contribute to shaping the basic rights of the vulnerable.
Correction, that's @DLeonhardt with a valuable piece in @nytopinion today on institutional reform of the Court.
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