January 2, 2011


McCloskey, Robert G., The American Supreme Court, 5th edition, revised by Sanford Levinson (Chicago & London: U. of Chicago Press, 2010) (America has thus had two sovereigns, but this somewhat outlandish arrangement has been maintained only because each of the partners has known the meaning of self-restraint. In the critical literature of the past generation or two, one has read much about judicial tyranny, and the vision of a populace bent on social reform but shackled by an unfeeling Court's deposition seems to have beguiled more one observer. In truth the Supreme Court has seldom, if ever, flatly and for very long resisted a really unmistakable wave of public sentiment, It has worked with the premise that constitutional law, like politics itself, is a science of the possible." Id. at 1. From the CODA: "It is a notorious truth that more Americans can name the Three Stooges than can name three members of the Supreme Court. Perhaps this is an irrelevant factoid. One does not have to know the name of one's airline pilot in order to feel confidence that one will be transported safely, at least if one has confidence in the 'brand name' of the airline one is flying. Perhaps if we really believe that law--especially 'constitutional law'--were the equivalent of rocket science and that, concomitantly, we could truly identify the very best rocket scientists/justice whom we could count on to reach the moon (and return), we would be as indifferent as to actual identity as we are with regard to airline pilots and rocket designers. But, as already suggested through he use of he subjunctive, no one really really believes in 'legal science,' and everyone recognizes that the identity of the justices really does matter." Id. at 283.).