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Glenn Harlan Reynolds, aka Instapundit, routinely puts forth novel and compelling arguments.
I wanted to call your attention to his latest, as described in a provocative new Encounter Books broadside titled The Judiciary’s Class War, regarding what I would describe as the Supreme Court’s cultural and too frequently ideological progressivism.
In his broadside, Reynolds focuses in large part on the notion of a Front Row/Back Row bifurcation in our society, which is reflected in the makeup of the courts, writing:
If the federal courts, and the Supreme Court in particular, were solely focused on technical legal questions, the dramatic gap between the backgrounds and class identities of the judiciary and those of Americans in general would be less significant. But since the mid-twentieth century, the federal courts have become, in essence, our nation’s moral umpire when it comes to the pressing social questions of the day. This use of the courts itself reflects a Front Row approach, removing decisions from the masses and placing them in the hands of educated elites.
The inextricably intertwined nature of the elite academic/professional background and legal/political philosophy of our leading jurists, Reynolds suggests, often results in perverse jurisprudence — even when said jurists get the rulings “right.”
During our interview for the Encounter Books Podcast, Reynolds warns in part that the judiciary — composed as it is of those inhabiting this bubble “bound up with the sort of elitism and scientism…[of] mid-century progressivism” — is reflexively biased not only in its rulings but in the cases it chooses to hear, noting:
It’s frankly sort of absurd that the Supreme Court decides a lot of the questions that it does often, essentially as a first instance rather than after just saying Congress tried and got it wrong. And I think that when it does so, it brings to it the instincts of the elite bar. And the elite bar is a group of people who tend to lean socially left, certainly. But as I say, it’s a matter of manners, and mores that go sort of beyond left and right.
As I tease out during our conversation, that the courts dictate so many critical issues reflects just another manifestation of congress’s willful dereliction of duty. Congress has routinely punted the most monumental and pressing of issues to the bureaucracy and/or courts. The administrative state grows while the legislative branch shrinks.
What is the antidote with respect to the courts, absent the reassertion of congress and the deconstruction of the administrative state?