The Court Cannot Hold

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.

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