Politics and Law, Again
The Cato Institute’s Center for Constitutional Studies is pleased
to publish this fifth volume of the Cato Supreme Court Review, an
annual critique of the Court’s most important decisions from the
term just ended, plus a look at the cases ahead
all from a classical
Madisonian perspective, grounded in the nation’s first principles,
liberty and limited government. We release this volume each year
at Cato’s annual Constitution Day conference. And each year in this
space I discuss briefly a theme that seemed to emerge from the
Court’s term or from the larger setting in which the term unfolded.
A year ago, with the Roberts hearings looming immediately before
us and several stormy years of appellate court confirmation hearings
just behind us, I focused on Politics and Law, arguing that our judicial
confirmation hearings had become so “political” because so much
of the twentieth century’s constitutional jurisprudence had
amounted to politics trumping law. With that politicization of the
illustrated by several cases that term we should
expect nothing less than politicized confirmation hearings.
In the year since then, much has happened, of course. The ink was hardly dry on last year’s Review when Chief Justice Rehnquist died. Judge Roberts was then nominated to be chief justice, and Judge Alito was nominated to fill the O’Connor seat for which Roberts had originally been nominated. Their hearings followed, with some delay in the case of Judge Alito’s. The hearings were long and stormy, unlike most hearings in the past, and they served to illustrate again how politics today so dominates law.
*Vice President for Legal Affairs; B. Kenneth Simon Chair in Constitutional Studies; Director, Center for Constitutional Studies, Cato Institute.