[porphyrogenitus]

“The Supreme Court is a representative institution in that it attempts to do what is right for the nation as a whole.” is a common view fed to students but which few of the mouthpieces of this position really in their hearts believe, as soon as you bring up decisions they don’t like.

Ironically I’m taking a graduate-level political science con-law course this semester (the beginning of Uni is one reason I haven’t been as active in these forums as during winter break), taught by the same sort of nice-but-typical-academic progressor, and it is evident that there is a sort of doublethink; on the one hand, in some lectures, the outlook like the above of the Court as the great deliberative body that expands our rights and basically has plenary power to do so and the constitution means whatever they say, and then in other lectures, on other topics and other periods, expressing skepticism towards the court, “look at their reasoning, wasn’t it poor,” attitude, &tc. I’ve used my Q&A/discussion time to highlight that in the cases where he is suggesting they’re wonderful and in the cases they’re suggesting they are wrongheaded, they are behaving in exactly the same way, (illustrating through this, without directly saying, that he he/the textbook authors are doing the same thing he/the textbook authors/&tc cautioned us *not* to do at the beginning of the course: react as laymen, praising decisions whose outcomes we ideologically like and deploring decisions we ideologically dislike).

“The Supreme Court is a representative institution in that it attempts to do what is right for the nation as a whole.” is also presenting the Court-as-plenary-policy-maker rather than court as interpreter of law/interpreter of the constitution. It takes as a “given” the Progressive revolution that started a hundred years ago, that certain public officials/technical experts should be empowered “to do what [they think] is right,” which was based on believing that there is a certain class of people (public officials & intellectuals) who float above personal self-interest and have none of their own (i.e. governmental bodies/governmental agencies have no interests they pursue, they just pursue the general welfare), that they are – at least if guided by progressivism – are able to take a long overview, both in time and space – of society and discern what is best for everyone, and that if the Constitution-as-written acts as an obstacle to their doing so, they should simply ignore its limits and reinterpret it in favor of their expansive use of power (not that this represents government acting in its own interests – accumulation of power – or encroachment upon our lives, mind; they’re just doing it because it’s whats best for us, obviously, and if we fail to see that it just proves the point that we’re too benighted and need such wise overseers to make these decisions for us, and this is also why we can’t be bothered to use the cumbersome amendment process to make these constitutional alterations; left to that alone, these necessary changes simply would not happen because the people are too short-sighted to see the wisdom of the changes, but in time – under our enlightened-progressive guidance – most of them will come around later).

Any close examination of, say, anti-trust rulings, will highlight that this is bunk. Which is possibly why, even over 6 decades after John McGee’s empirical examination of the Standard Oil antitrust case, and much research into that by specialists in the field (including DiLorenzo & Armentano), none – not even the work of “mainstream” academics in that field – has penetrated the general (progressive) scholarly community, who still lecture as if all one needed to know was Tarbell and anti-trust has been designed (mainly by the courts) to protect the general public rather than simply used as a whip by one set of interests against their rivals. (And these modern academics prize themselves on how “empirical” they are).

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