Stephen E. Sachs (Duke University School of Law) has posted Supreme Court as Superweapon: A Response to Epps & Sitaraman (129 Yale Law Journal Forum 93 (2019)) on SSRN. Here is the abstract:
Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, "How to Save the Supreme Court," they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. And their case that there *is* any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.
And from the paper:
Indeed, the strangest thing about these proposals is the view that the Court needs saving at all. The last three years reflect not “an unprecedented legitimacy crisis,”12 but a partisan realignment: something that might have occurred nearly thirty years ago, had circumstances been slightly different. That it seems like a crisis to many people is itself reflective of deep problems in our legal culture, which too often looks to judges for political guidance rather than for the decision of cases under law.
Maintaining an uneasy peace among warring factions is not, as Dougherty pointed out, the Court’s actual job.13 Justice Kennedy himself famously claimed the role, calling in Planned Parenthood of Southeastern Pennsylvania v. Casey for “the contending sides of national controversy to end their national division.”14 Needless to say, that did not work; there are no injunctions to stay proceedings in the court of public opinion. And any institution that seemed capable of issuing them—one powerful enough, and free enough from preexisting legal rules, to respond to the felt exigencies of the time—is an institution that political actors cannot afford to leave uncaptured. A Court that can do just anything is too powerful a superweapon to leave lying around in a democracy; sooner or later, someone is bound to pick it up. Rather than work to put “moderates” at the controls, perhaps we should start thinking about disarmament.
Highly recommended.