Leiter: SCOTUS acts as a "super-legislature"

Brian Leiter,the  U. Chicago legal philosopher, prolific blogger, and scold elaborates on the stance taken by his colleague Richard Posner.  The U.S. Supreme Court in their view operates in a framework where there is little consensus about rules of construction and little guidance to be found in the general rules and structure of the Constitution.
The U.S. Supreme Court in Marbury v. Madison (1804) arrogated to itself what the English Parliament had won at Torbay - the role of being the last word on the meaning of the law.  Now the Justices- with little candor - act as a super-legislature.  Driven by their own values Justices often override the actual legislature -the Congress, as in Shelby v. U.S. (voiding Section 4 of the Voting Rights Act), and imposing their own values contrary to the apparent plain meaning of the terms construed as in Heller v. D.C. (casting off the language of the preamble of the Second Amendment regarding state militias and embracing a personal right to have a gun).
- gwc

CONSTITUTIONAL LAW, MORAL JUDGMENT, AND THE SUPREME COURT AS SUPER-LEGISLATURE
Brian Leiter*

Abstract 

I defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. 

This is, in part, a jurisprudential thesis about what counts as “legally binding standards,” one that I shall defend by reference to the most plausible account of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. 

Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. 

That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. 

This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent, including New York v. U.S., Heller, Hobby Lobby, Shelby County, and others.

Note: This is the text of the 24th Mathew O. Tobriner Memorial Lecture in Constitutional Law to be presented at the University of California Hastings College of the Law, San Francisco, January 12, 2015.