Is it possible to decide whether a constitutional decision is right or wrong? Legal scholars respond with an enthusiastic 'Yes!" but their reasons for this answer are generally based on what philosophers call formal arguments. These arguments, as opposed to substantive arguments, focus on internal coherence, rather than external standards. Originalism, textualism, structural analysis, and evolving meaning are all formal arguments. Their appeal lies precisely in their independence from external issues-that is, from the sort of issues that generate political and social controversy. If one can demonstrate by formal argument that a particular constitutional decision is correct, then one can insist on the result, even in the face of those who disagree on normative or pragmatic grounds. Erwin Chemerinsky's The Case Against the Supreme Court takes a different approach. It condemns the Court's decisions, over the course of American history, on the grounds that these decisions have violated an external standard. That standard can be roughly described as a progressive approach to human rights issues. At the outset, Chemerinsky states that his standard for "assessing whether the Court is succeeding or failing" is whether it hands down decisions "that are uniformly condemned by subsequent generations of scholars and judges." Such decisions could involve a wide variety of topics, of course, but Chemerinsky goes on to declare that the ones on which he is basing his assessment-and the ones we should care about-are "the rights of minorities who cannot rely on the political process" and resistance to "repressive desires of political majorities." The formal standards, such as fidelity to text or structural coherence, that dominate academic writing about constitutional law are subject to many challenges, but Chemerinsky's external standard is equally open to challenge, albeit on different grounds.
Edward L. Rubin,
The Supreme Court in Context: Conceptual, Pragmatic, and Institutional,
69 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss4/7