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The Disdain Campaign

Harvard Law Review Forum, Vol. 126, pp. 1-12, 2012

Georgetown Public Law Research Paper No. 12-188

13 Pages Posted: 30 Nov 2012  

Randy E. Barnett

Georgetown University Law Center

Date Written: 2012

Abstract

A response to Pamela S. Karlan, ​The Supreme Court​ 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.”

Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain.

Keywords: Supreme Court, Congress, disdain, Justices

JEL Classification: K00, K30, K39

Suggested Citation

Barnett, Randy E., The Disdain Campaign (2012). Harvard Law Review Forum, Vol. 126, pp. 1-12, 2012; Georgetown Public Law Research Paper No. 12-188. Available at SSRN: https://ssrn.com/abstract=2182633

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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