Thread
This essay is equal parts important and frustrating. The motivating idea, that a conception of law that “dissolves” into politics threatens to undermine past democratic decisions is, I think, correct. (1/13)
lpeproject.org/blog/democracy-without-law/
lpeproject.org/blog/democracy-without-law/
Having said that, few if any today argue that law “just is” politics. To the contrary, a great deal of present criticism is that judges are doing politics under the guise of doing law. (2/13)
That critique, of course, accepts rather than rejects the distinction between politics and law. (3/13)
At the same time, most critics recognize that the law, understood as past democratic decision, fails to resolve most ‘legal’ issues that are actively contested today, especially constitutional ones. (4/13)
This is just Legal Realism, which, as @BrianLeiter explained two decades ago, is not skepticism about law in general, but rather skepticism that *appellate courts*, and in particular the Supreme Court, are doing much law. (5/13)
www.jstor.org/stable/10.1086/233474
www.jstor.org/stable/10.1086/233474
Unfortunately, in attacking the sort of global legal skepticism few advocate, @NoahZatz implicitly rejects the insights of Legal Realism, hinting that past democratic decisions consistently resolve present disputes – and favorably so, conveniently! (6/13)
Offering examples like Trump’s funding of a border wall or pardoning Sheriff Joe Arpaio, @NoahZatz suggests that previous democratic decisions unambiguously precluded those actions – a remarkable claim given the incredibly open-ended character of the legal texts at issue. (7/13)
More generally, @NoahZatz suggests that disputes about the rules of our democracy can be settled (again, favorably for progressives) by appeal to prior democratic decisions. (8/13)
As @samuelmoyn and I have argued at length, that simply isn't true, as the most heated disputes in the ‘law’ of democracy mirror fundamental ideological conflicts – conflicts not resolved through the adoption of vague constitutional language. (9/13)
vanderbiltlawreview.org/lawreview/2022/04/the-ghost-of-john-hart-ely/
vanderbiltlawreview.org/lawreview/2022/04/the-ghost-of-john-hart-ely/
The reality, of course, is that *much* of our law, both statutory and constitutional, is vague or otherwise imprecise (e.g., “due process,” “equal protection”), inviting us as a people to *decide* how to make our law more precise in specific circumstances. (10/13)
The inevitable contest over how to proceed given our unavoidably imprecise laws is what critics of juristocracy in particular are pointing to in saying that appeals to ‘law’ systematically obscure political decisions. (11/13)
As @NoahZatz points out, leaving those choices to politics risks of bad or even catastrophic outcomes. But that is just the reality of things. Pretending past decisions have resolved things favorably does nothing to lessen that risk. (12/13)
And if anything, pretending that we can find law rather than make it in most of the cases that concern us *increases* risk by suggesting historically reactionary judges are the ones who should be making those decisions. (13/13)
