Online Features

Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

James Gibson and Michael Nelson have written another compelling paper examining how Americans think about the Supreme Court. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply—prepared for a symposium held at the New York University School of Law—questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high—precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.

In this essay, I argue that a constitutional scheme grounded in the Rule of Law cannot rely primarily on a self-executing, mechanistic vision of Madison’s ambitious branches checking one another. Rather, “We the People” depend on self-regulation—in the form of constitutional good faith—by the vast majority of our constitutional actors. I then offer a meditation on the nature of good faith required for healthy American constitutionalism.

President Trump’s repeated and unsparing criticisms of the federal judiciary provide an opportunity to examine how public critique of the U.S. Supreme Court affects Americans’ willingness to support the institution. We report the results of an experiment embedded in a nationally-representative survey of Americans that varied in both the source (President Trump or distinguished law professors) and content (legal or political) of the criticism aimed at the Court. Our results—perhaps surprising to many—demonstrate that the greatest decline in support for the Court came among those respondents who learned of criticism by law professors that the Court’s decisions are politicized. The results have important implications for our understanding of the Court’s legitimacy under President Trump.

Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.

SYMPOSIUM INTRODUCTION

Loving v. Virginia held unconstitutional laws that forbid interracial marriages. This article argues that the legacy of Loving, in light of later constitutional developments (including the constitutional recognition of gay marriage), should be understood in terms of the larger political and psychological evil of state enforcement of Love Laws, the patriarchal laws that “lay down who should be loved, and how. And how much.” Arundhati Roy. Loving and later constitutional developments express the freeing of ethical voice that arises not only from breaking, but resisting the Love Laws. The article contrasts breaking and resisting the Love Laws through a comparison of the life of the great black gay novelist, James Baldwin, and the life of the young black boy and man in the 2016 movie, Moonlight. The freeing of ethical voice by resisting the Love Laws is also investigated in the interracial marriage of the parents of Barack Obama and its impact on their son. Such resistance—as in the civil rights and anti-war movements as well as second-wave feminism and gay rights—is often met with a reaction patriachal politics, illustrated by the recent election of a patriarchal man, Donald Trump, to the American presidency. Resistance to patriarchy is now, for this reason, more needed than ever.