Problem
STANCE: Judges should refrain from policymaking
Refer to following readings when answering questions:
I. Graglia, Lino A. "Roundtable: The Supreme Court As a Political Institution--Do Judges Have a Policy-Making Role in the American System of Government." Harv. JL & Pub. Pol'y 17 (1994): 119.
II. Klein, Ezra. "Dobbs Is Not the Only Reason to Question the Legitimacy of the Supreme Court" The New York Times. June 30, 2022.
III. Reinhardt, S. The Supreme Court as a Partially Political Institution. Harv. JL & Pub. Pol'y 17 (1994):149.
IV. Cole, David. "Originalism's Charade." The New York Book Review. November, 2022.
Task
A. Consider Graglia's critique of the SCOTUS and the role judges should have in a democratic system. Consider also Reinhardt's response to him. Which author do you find more convincing?
B. Discuss the pros and cons of the two basic views one might have about the Constitution: originalism vs. viewing the Constitution as a living document. Which authors openly espouse one of the views? Which view do you agree with? Justify your position by explaining its merits. Bonus points for considering counterarguments;)
C. Discuss why Klein suggests that the SCOTUS is going through a legitimacy crisis. Do you agree with him and why? Can anybody think of any counterarguments to Klein's points?
D. Graglia and Reinhardt's readings are part of roundtable conducted in 1994. Do you think their opinions would change given the current composition of the SCOTUS and the recent rulings?
E. "What should be the role of judges in the American system of government? Should judges be policymakers or should they confine themselves to deciding cases by applying the policies, expressed in law, made by others?"