The Disdain Campaign

The Harvard Law Review‘s annual Supreme Court Foreword is the highest profile article published by America’s premier law review. This year’s Foreword, by Stanford law professor Pam Karlan, is entitled “Democracy and Disdain” (a take off on Richard Hart Ely’s classic book, Democracy and Distrust). As Orin noted a couple weeks back, the Review asked Steve Calabresi and me to contribute replies to the Harvard Law Review Forum. Steve’s excellent reply, “The Constitution and Disdain,” his here. My reply, “The Disdain Campaign,” is here.  It’s theme is taken from the movie Cool Hand Luke:

You run one time, you got yourself a set of chains. You run twice you got yourself two sets. You ain’t gonna need no third set, ‘cause you gonna get your mind right. And I mean RIGHT. Take a good look at Luke. Cool Hand Luke?

— The Captain, Cool Hand Luke

Here is the abstract:

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.

My conclusion:

Disdain is okay, so long as it is directed at the five conservative Justices on the Supreme Court when the four progressive ones are opposing them.

Indeed, disdain is a weapon to be wielded like the dogs in Cool Hand Luke to bring conservative Justices to heel. It is not enough for the Chief Justice to yield to the political branches. He must also have his mind righ

Boss Paul: You got your mind right, Luke? Luke: Yeah. I got it right. I got it right, boss. (He grips the ankles of the guard) Boss Paul: Suppose you’s [to] back-slide on us? Luke: Oh no I won’t. I won’t, boss. Boss Paul: Suppose you’s to back-sass? Luke: No I won’t. I won’t. I got my mind right.

Until Chief Justice Roberts does — or until the conservative Justices lose their slim majority — the disdain campaign will continue.

As I chronicle in the rest of the essay, Karlan’s Foreword is just the latest in a campaign to impugn the integrity of the conservative justices and, if need be, the Supreme Court so long as there is a conservative majority.  I thank the Review for soliciting alternative perspectives.  You can read the whole thing here or here.

For those who don’t remember the scenes from Cool Hand Luke, we can thank YouTube for letting us see them again: