Constitutional adjudication is not a "Cosmic Battle" of good versus evil between Ironman and Thanos. "Judges are not superheroes," and constitutional cases should be decided dispassionately, with an appreciation that judges or justices who disagree usually do so in good faith and for valid legal reasons. But "some judges [and justices] have confused their role with that of the Avengers." When they disagree with their colleagues, they sometimes claim that the "other side" is acting in bad faith or in ways that are illegitimate. Such ad hominem attacks, while rhetorically appealing and perhaps true in some cases, do not bolster the legal analysis. They do, however, undermine the legitimacy of the courts, and judges and justices should not engage in such wars.
This is the thesis of Professor H. Jefferson Powell's article - Judges as Superheroes: The Danger of Confusing Constitutional Decisions with Cosmic Battles. He joins me to discuss how some judges and justices use rhetoric as a weapon against colleagues who disagree with them, and how doing so is harmful to institutional legitimacy.
Professor Powell teaches Constitutional and First Amendment law at the Duke University School of Law. His latest book is The Practice Of Constitutional Law. He holds a bachelor’s degree from St. David’s University College (now Trinity St. David) of the University of Wales; a master’s degree and PhD from Duke University; and a Master’s of Divinity and JD from Yale University. Prior to entering academia almost 4 decades ago, Professor Powell clerked for Judge Sam J. Ervin III of the U.S. Court of Appeals for the Fourth Circuit.
Opinions and writings discussed:
Dobbs v. Jackson Women’s Health Org., USSC (2022).
McDougall v. Cnty. of Ventura, 9th Cir. (2022).
SisterSong v. Gov. of Georgia, 11th Cir. (2022).
Manning v. Caldwell, 4th Cir. (2019).
Robert's LinkedIn article about Chief Judge William Pryor's opinion in SisterSong.
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