Irresponsibility Breeds Contempt

Abstract

Everyone is picking on the Supreme Court these days. To be sure, some of the criticism is warranted: the Court has butchered history - to say nothing of constitutional text - in its attempt to interpret the Eleventh Amendment, and betrayed its own federalism principles by second-guessing a state court's interpretation of state law (and applying a constitutional test explicitly limited to the case before it). But the current attacks on the Court go well beyond individual cases or doctrines, and are reminiscent of Jeffersonian jabs at John Marshall or the John Birch Society's "Impeach Ead Warren" campaign. Pointing to the Court's invalidation of parts of more than 30 federal statutes over the past decade, critics blame the Justices. The Court is portrayed as arrogant, self-aggrandizing, and unduly activist, and accused of giving insufficient deference - or even a modicum of respect - to Congress.