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The Problem Isn’t Judicial Review; It’s the Court’s Politics


Erin Schaff/The New York Times via AP

The assembled justices of the U.S. Supreme Court, Washington, April 2021

This article is part of a Prospect symposium on judicial review and the separation of powers.

Ryan Cooper asks us, in response to a Supreme Court that, like an autoimmune disease, has turned on the constitutional democratic republic it is supposed to protect, why do we even have a Supreme Court?

It’s not a new question. As Cooper points out, throughout our history a formidable group of Americans have openly asked the same question—starting with Thomas Jefferson and including Abraham Lincoln. But Cooper’s piece in certain ways slides by the issues involved here. Because what is involved is the question of what it means to be a constitutional republic. Which, today, is what we are. One of my favorite political lines of recent years is now-U.S. Rep. Jamie Raskin’s statement at a hearing of the Maryland legislature that there is a reason elected officials swear an oath of loyalty TO the Constitution, with their hand ON the Bible, rather than the other way around.

And this is the key to the real rot of the Supreme Court’s recent cases, and, in fact, most of […]

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