Double Aspect

US pubic law, both constitutional and administrative, is endlessly interesting ― witness co-blogger Mark Mancini’s most recent post on the US Supreme Court’s decision in Loper Bright Enterprises v Raimondo. One reason American law is worth engaging with even for those of us in jurisdictions where courts are not inclined to look to it much is important ideas are aired in the US Supreme Court opinions in a way that is not always the case elsewhere ― which happens because of the ideological diversity, or if you prefer polarisation, of that court’s membership. This, in turn, is the product of the way in which the political actors ― the presidents who appoint federal judges and the senators who confirm (or don’t) these appointments ― have come to take a considerable interest in the substance of the judges’ views on a surprising range of issues.

It is de rigueur, in polite society, to decry all this. Some scholars go so far as to claim that the US Supreme Court is no longer a court at all. Others are content to lament its politicisation and/or lack of independence, and to conclude that it has nothing to teach them. When Canadians smugly argue that our courts are not subject to the sort of ideological influences and divisions that affect their neighbours, they are simply wrong. And I don’t think that the sort of depoliticized ― and self-perpetuating ― system of judicial appointments that has been put in place in the United Kingdom is much of an improvement on the Canadian system, where governments can at least try to give the courts a nudge in what they regard as the right direction for future development of the law.

All that to say, I am ― on the whole ― rather an admirer of the US federal judiciary, and more specifically of judges such as Neil Gorsuch and Amy Coney Barrett, though this is not to say I agree with each and every decision they make (and they don’t always agree with one another either). I mention them, in particular, because they were two of Donald Trump’s three appointments to the US Supreme Court ― and it is especially the Trump appointments that irk people, for reasons both bad and good.

And so I was very pleased when Thomas Hochmann invited me to contribute to the Revue de droit public’s symposium on “Destroying or Rebuilding an Independent Judiciary”. I was even more pleased when he was not too taken aback when I suggested that, instead of writing about how the Biden administration might make the Supreme Court great again after the Trump appointments supposedly wrecked it ― which I don’t think they did ― I instead write about how these appointments were themselves a culmination of a remarkable campaign to restore the Supreme Court’s constitutional role from which it had turned away in the aftermath of the New Deal. But I say, also that instead of being a moment of apotheosis for the legal conservative movement, these appointments have been ― or at any rate should have been ― an embarrassment because of the way in which they, and especially that of Justice Barrett, have come about. With apologies to Corneille, it was an inglorious triumph.

The paper ― en français! ― is now out in the Revue de droit public. Here is the abstract, in both languages:

Pour la droite juridique américaine, les nominations à Cour suprême des États-Unis faites par Donald Trump étaient l’aboutissement d’un demi-siècle d’efforts intellectuels, organisationnels et politiques. Cet article raconte l’origine de cette campagne dans l’opposition à la jurisprudence de l’après New Deal, son développement dans les décennies qui ont suivi et son aboutissement entre 2016 et 2020. Il soutient, toutefois, qu’en raison des manigances procédurales grâce auxquelles il a finalement été accompli, ce triomphe en est un sans gloire, ce qui devrait servir d’avertissement à quiconque cherche à son tour à reprendre le contrôle de la Cour suprême. 

For the US legal conservative movement, Donald Trump’s appointments to the Supreme Court of the United States were the culmination of a half-century of intellectual, organisational, and political effort. This article chronicles the origins of this campaign in opposition to the post-New Deal jurisprudence, its development over the following decades, and its culmination from 2016 to 2020. However, it argues that, due to the procedural chicanery that enabled it, this triumph is an inglorious one, which ought to be a warning to anyone who seeks, in his turn, to take over the Supreme Court.

With the Revue’s permission I have also posted the manuscript on SSRN. Once again, thanks to Professor Hochmann for inviting me (and for kind comments on the draft, too).