Abstract

http://ssrn.com/abstract=2423398
 


 



The Court Cannot Hold


Or Bassok


European University Institute - Department of Law (LAW)

May 11, 2014

Journal of Law and Politics, Vol. 30, 2014
SUNY Buffalo Legal Studies Research Paper No. 2014-023

Abstract:     
In recent decades the American Supreme Court has been struggling with two main issues: articulating America’s constitutional identity and the decline of legal expertise in the public mind. First, since American national identity is currently dependent to a large extent on the Constitution, the Court has an important role in defining, or at least expressing, this constitutional identity. The second issue facing the Court stems from the threat to its legitimacy due to the growing public awareness that legal expertise does not dictate the decisions in constitutional cases and that judicial discretion is partly based on political considerations. These two issues require the Court to practice two distinct and conflicting forms of logic. The domain of constitutional identity is controlled by the logic of foundational politics while the domain of expertise is controlled by the logic of apolitical, systematic knowledge. By re-conceptualizing constitutional theories as attempts to confront this conflict, I expose the limbo in which the Court currently resides. In an attempt to escape from this limbo, the Court has adopted in recent decades the paradigm of thin liberalism as its answer in the realm of constitutional identity. Yet, this way of viewing American constitutional identity as neutral towards the question of the good life cannot provide an adequate response to President Obama’s recent attempt to redefine America’s constitutional identity. In the expertise domain, the Roberts Court’s tactic of thin expertise has thus far failed as public opinion polls show that public confidence for the Court has been in decline in recent years.

Number of Pages in PDF File: 52

Keywords: constitutional identity, legitimacy, expertise, Roberts Court, identity originalism

Accepted Paper Series





Download This Paper

Date posted: April 13, 2014 ; Last revised: September 28, 2014

Suggested Citation

Bassok, Or, The Court Cannot Hold (May 11, 2014). Journal of Law and Politics, Vol. 30, 2014; SUNY Buffalo Legal Studies Research Paper No. 2014-023. Available at SSRN: http://ssrn.com/abstract=2423398

Contact Information

Or Bassok (Contact Author)
European University Institute - Department of Law (LAW) ( email )
Via dei Roccettini, 9
I-50122 Firenze
Italy
Feedback to SSRN


Paper statistics
Abstract Views: 274
Downloads: 65
Download Rank: 207,713

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.375 seconds