September 20, 2007
THE COURT HAS MOVED RIGHT SINCE I980. SO WHAT?
Seriously: why on earth would the definition of a "conservative" court in 1980 be some sort of lodestar by which all future courts should be judged. By the standards of 1880, the current court would be a bunch of wild-eyed socialist libertine radicals bent on undermining everything that made America great. Does that entitle me to re-nominate Oliver Wendell Holmes, or his modern day equivalent?
Cass Sunstein (who graduated from law school in 1978) seems to be under the delusion that the conditions of his youth are the golden mean by which all future events are to be judged and found wanting. I mean, we all feel the same way, but most of us don't expect anyone younger to take us seriously when we drone on about how much better The Pogues were than any of this modern noise. . . .
The court is to the right of the average law professor, not to mention the average Cass Sunstein. But that's because the average law professor is to the left of the average American, and any reasonably democratic system is going to produce a Supreme Court whose mean opinion hews more closely to that of the voters than to that of any larger group from which the appointees are drawn.
It's better that we don't let law professors pick Supreme Court justices.