A Modest Proposal for a Political Court

Abstract

I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift,1 or whether I mean it to be taken seriously. The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is "a product of the substance and perception" that it is a court of law.3 Thus, frequent overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings are grounded in law.4 Especially when a controversial ruling like Roe v. Wad is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is "surrender[ing] to political pressure" or "over-nul[ing] under fire."6 Such a perception, in turn, would lead to "loss of confidence in the judiciary."7 Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.