At Liberty Law Blog, John McGinnis: Don't Further Politicize the Court (responding to this post by Rick Hasen). From the conclusion:
Hasen is not making a serious argument of constitutional theory. He just wants politics completely to replace law at the Court in politically consequential cases. He never considers the costs of making the Court an even more politicized body. In an article with Nelson Lund, I focused on some of the substantial dangers:
[An openly political] mode of judging has long term costs – costs that the Justices can impose on future generations with relative impunity. If constitutional debates about contentious issues of the day become simply politics by other means, the Constitution will have failed in one of its primary purposes – to create a framework by which disputes are authoritatively and predictably settled without simply replicating the strong moral and political disagreements that lead to the need for such rules in the first place. When the Court refuses to resolve such disputes by resorting to settled legal rules, and instead injects its members’ personal ideological preferences, it sharply reduces the value of this settlement function. Other politicians, moreover, and occasionally even the people themselves, will come to recognize that the Court is engaging in ordinary politics while exempting itself from the mechanisms of political accountability.
Just as the nation state can debase its currency through excessive debt, so a constitutional democracy can degrade its fundamental rule of law though politicization of its judiciary. Hyper-lawlessness no less than hyperinflation can dissolve our republican bonds.
Posted at 6:02 AM