The Three Whisky Happy Hour: ‘The Frigate 93 Election?’

I know we promised listeners that last week's episode would be the beginning of a three-part series on liberal education rightly understood, but the passing of Justice Ginsburg has thrown us off our plan. But rather than go in for the usual punditry about confirmation battles and the effect this will have on the election, Lucretia and I decided to step back and take on a truly radical perspective on the controversy. What if the Supreme Court wasn't so important to our political order, and appointment to it were on the level of appointments to the Federal Trade Commission instead? How might that be accomplished?

Lucretia thinks maybe—perhaps—the trouble isn't with "originalism" versus "activism," or certain cases and periods when things went notably wrong (like the so-called "revolution of 1937"), but rather that the sweeping judicial review ushered in by the famous Marbury case in 1803 is the root of the problem. It is very nearly a heresy to regard Chief Justice Marshall as the root of all judicial evil, but maybe we haven't got him, or Marbury, quite right. We go back through the peculiar politics and jurisprudence of the Marbury case, including the striking political parallels between our bitter election right now and the equally bitter contest of 1800, which I suggest could well be considered "the Frigate 93 Election."

We promise to get back to the series on liberal education next week, but for now, pour yourself a whisky and take this one in.