The Role of the Judiciary

Sometimes I feel like too much of this blog is spent criticizing, so I'm happy to be able to offer effusive praise for something. Professor Robert F. Nagel of the University of Colorado Law School has a wonderful piece explaining why the Supreme Court should not develop new rights, either from the left or the right. I can't say it better than he can, so I'll quote some key passages:

Do you have a bright idea (albeit a controversial one) that you would like to see implemented as national policy? Would you prefer to achieve this without the inconvenience of having to persuade Congress and the president, let alone the American people? Well, here's how to do it.

First, go to law school and afterwards clerk for a justice of the Supreme Court. Then become a professor at a leading law school. Earn the respect of other legal scholars by writing academic articles and books. Gain broader visibility by publishing op-ed pieces and operating a blog. Next, write up your bright idea as an article for an influential law review and get an important think tank to invite prominent legal scholars to discuss your article. Then, wait for some litigators to pick up your idea and hope the Supreme Court will eventually impose it as a requirement of constitutional law. It doesn't always work, but--at least as compared with the options available to most people--it is worth a shot.

This strategy has often been used by left-wing law professors and even by some conservatives. However, with the Court increasingly dominated by the likes of Antonin Scalia and John Roberts, who claim to be committed to judicial restraint, it might seem that clever constitutional arguments are no longer a likely way to influence national policies. UCLA's Eugene Volokh, one of the nation's most prolific and insightful young legal scholars, doesn't think so. And, sadly, he may be right.

...

This is how lawyers have come to dominate moral debate in the United States. They elevate their preferences to constitutional rights and then claim that profound moral beliefs held by others are inadequate to justify restrictions on the newly created rights. You see, rights cannot be abridged except for highly convincing reasons, and judges (enlightened by the arguments of litigators and law professors) will decide what is convincing.

Creating a constitutional right to medical self-defense would be a definitive sign that the conservatives who sit on the Supreme Court are not serious about establishing a saner, less imperial role for the judiciary--indeed, that just about nobody in the legal
profession is. This would be further evidence, if more is needed, that if non-lawyers want to retake control over public decision-making, they should not expect much help from members of the profession whose inordinate power is based on the modern conventions of constitutional argument.

This is a powerful point, and he makes it as well as it can be made. In my experience, it's the kind of point that people instinctively disagree with, but when it is explained they will often come around. It's great that Professor Nagel is taking the time to explain.