In response to: The Legal Turn
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
Richard A. Posner is the greatest law professor ever to have become a judge in the United States. And he has proven to be the most influential appellate jurist below the Supreme Court who was ever a law professor. Indeed, by the most telling measure—citations by other courts—he holds more sway over his colleagues than any other jurist on the federal courts of appeals. Thus, it would seem that no one is better equipped to write about the relation between the academy and the judiciary. Sadly, however, in Divergent Paths: The Academy and the Judiciary he has produced a disappointing…