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How the Supreme Court became a political prize long before Kavanaugh

How the Supreme Court became a political prize long before Kavanaugh

Deborah Pearlstein is professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law at Yeshiva University.

If the confirmation of Brett Kavanaugh to the Supreme Court – and the brutal Senate struggle that preceded it – raises the fear that the court is sliding in the direction of alarming bias, David Kaplan has news for us all. According to him, the court lost its legitimacy as an apolitical arbiter of the nation's most important constitutional disputes long ago.

In his book "The Most Dangerous Branch" Kaplan describes the American government system as a clearly limited role for the unelected members of the Supreme Court. The judges could correctly weigh to interpret only rights explicitly laid down in the text of the Constitution, such as Fourth Amendment protection against unreasonable searches and seizures. The court could also intervene to protect the rights of minorities, because the constituents of the constitution recognized that the popular will could not always be trusted to protect the fundamental rights of an unfounded group. And the court could intervene to ensure that the crucial processes of democracy, such as voting and elections, went smoothly. Except that, as Kaplan claims, all other questions of public debate should be left to the rough and tumble of electoral politics. Kaplan's view of the role of the court is, in important respects, contrary to the view of many scholars of the court and the constitution.

Kaplan argues that the Supreme Court remained within the limits which, with a few exceptions, he described for a large part of his history until his ruling in 1973 in Roe v. Wade. In that case, Kaplan states, the judges have fully arrived at the recognition of individual rights that have not been explicitly included in the Constitution, without logically or convincingly explaining why the Constitution should be read in order to protect a right to abortion . "Roe v. Wade … was a turning point for the Court," Kaplan writes, "when the judges unnecessarily placed themselves in the middle of a case that was best left to the democratically responsible branches."

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