How to repair the dysfunction at the Supreme Court in a way that cuts across partisan ideologies
The Supreme Court, once the most respected institution in American government, is now routinely criticized for rendering decisions based on the individual justices’ partisan leanings rather than on a faithful reading of the law. For legal scholar Aaron Tang, however, partisanship is not the Court’s root problem. Overconfidence is.
Conservative and liberal justices alike have adopted a tone of uncompromising certainty in their ability to solve society’s problems with just the right lawyerly arguments. The result is a Court that lurches stridently from one case to the next, delegitimizing opposing views and undermining public confidence in itself.
To restore the Court’s legitimacy, Tang proposes a different approach to hard cases: a “least harm principle” under which the Court rules against the side with the greatest ability to avoid the harm it would suffer in defeat. Examining a surprising number of popular opinions where the Court has applied this approach, Tang shows how the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide our nation.
