Thursday, December 29, 2011

The Legitimacy of the Court (12/29/11)

There is an aphorism that the law is what the Supreme Court says it is.  That aphorism probably means whatever the speaker or listener thinks or wants it to mean.  To me, it does not mean that the Supreme Court makes decisions guided only by the world view of a majority of its Justices, but simply that, ultimately, the pronouncement of the majority as to the meaning of the law is the law.  The role of the majority's world view is much more complex.

Linda Greenhouse has written an excellent article on this process and the public view of the Supreme Court's legitimacy where the public recognizes that judicial decision making is not just a matter of calling balls and strikes but is sometimes a process of calling where the strike zone is.  (That's my analogy, not hers; for a fascinating read on the strike zone, see the Wikipedia entry here noting that MLB has "occasionally increased or reduced the size of the strike zone in an attempt to control the balance of power between pitchers and hitters.")

Ms. Greenhouse's article is Linda Greenhouse, What We Think About When We Think About the Court (NYT Opinionator 12/28/11), here.

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