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Legal Commentary

: Althouse

Harvard lawprof Noah Feldman answers no to the question "Does the Supreme Court really need reform?"

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"It?s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."

That's at Bloomberg.

It's also worth remembering that gay rights and gay marriage ? along with trans rights ? could have been given through statutory law and that the Supreme Court rules on a far wider array of issues than the conspicuous gay rights and abortion issues that Feldman forefronts in this effort to ward off Court reform. If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments.

But these are the issues that vast numbers of Americans want to think about, so it's not surprising that Feldman concentrates on them as he tries to convince liberals not to mess with the structure of the Supreme Court.

Full post as published by Althouse on October 25, 2020 (boomark / email).