Books like The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom

Ugh. Sometimes I actively choose books I know I’m going to disagree with, just because I do think it’s important to expose yourself to other opinions regularly, and not just constantly read people with the same worldview. But ughhhh sometimes it’s hard not to shred such a book, even when it’s a library book. But it’s my own fault. I knew- I knew- just by the fact that Richard Epstein endorsed it on the back that it was going to be trash. I am just that masochistic.Scalia, if he were still kicking, would heart this book. Textualism! Originalism! Fossilization! Single-minded libertarian streaks! Pretending to be judicially restrained when, actually, you’re not! Yes, my friends. Dolly Parton has Dollywood, and this book is the paper version of Scalialand. I did not enjoy my stay. For one thing, it pretends that textualism is the only valid constitutional theory. It’s one of many. It’s fine to write a book from one theory’s point of view, but don’t hold yourself out as the definitive truth.For example, it loves the Heller/McDonald cases (striking down gun laws federally and state-wise, respectively) because the second amendment says a right to bear arms, damn it. Right, okay, but this is post-hoc justifying, because everyone knows that right is the right to have a militia, not to run around a city with a handgun in your pocket. Handguns weren’t even a thing in the 18th century. You couldn’t reasonably have “concealed carry” of any firearms (muskets don’t fit in your pocket, fun fact). The world has changed in the past 200+ years, and a lot of language in the Constitution reflects prescient awareness of that, and (personally I think) a lot of the language is intentionally worded so as to be abstract enough to stretch to fit new situations as they come up.Note, that is my personal view. See how I don’t say that it’s the definitive answer, just a theory? This is my bone with this book. Now, look. I appreciate, really and truly I do, the problem with giving this much power to an unelected group of nine elitist judges. It’s a scary thought to have those 9 monarch-like human beings nomming on their power looming over you, when it’s supposed to be a democratic system of government. But, you know, the thing is... these judges are nominated by someone we did elect democratically (...even when that someone is a box of tools). If you really <3 democracy so much that you worry about SCOTUS being a threat to it… if you love it that much, you should trust it. Because SCOTUS judges are practically elected by proxy. It’s not that different from the electoral college system (voting for electors who will vote for the person we want to be president). If there’s a vacancy on the court, you bet a lot of people will be thinking about that when they decide who to vote for. So if you trust democracy, you should probably also trust SCOTUS. (Yeah, I get that they have life tenure so it’s not a perfect thing, but you should invest some trust in them).I say that even now, when we have someone like Trump on the presidency and potentially some upcoming SCOTUS vacancies. I don’t have to like it, but the country picked Trump, and so the country picked his SCOTUS nominations, too. We made our bed, and there’s no sense acting like we didn’t. I don’t love the Heller/McDonald decision for political reasons (I fucking LOVE gun control) and I think it’s funny they call it a Constitution-based decision when, like ALL the cases they denounce in this book, it’s a balancing test between individual and governmental interests- but I don’t think that Heller/McDonald, in doing that balancing test, was overreaching. I don’t like it, but I think it’s a valid exercise of SCOTUS’s power. I suppose the issue is that the decisions in this book are largely made to protect minorities from the majority will. This is... kind of... the point of SCOTUS- they’re the countermajoritarian branch of government. I don’t think they can realistically do that without the balancing tests made here. I’m not saying all the decisions here look constitutionally valid (Lochner wasn’t protecting anybody, it was about some capitalist judges who really love capitalism, and Korematsu was horrifying- but that’s not about the fact that they did a balancing test, but that they messed it up). But I am saying these authors seem naive in spite of their credentials (you think human beings can be objective on political issues? I’d rather take my chances with someone who admits they can’t be than on someone who pretends they are) and just too, too happy to trust majority will. (Hate to make ad hominem attacks but they’re also two straight, rich old white guys- it’s just common sense for them to believe in the majority will, since it’s probably always going to favour their interests). Also, it’s funny they seem to lionize Scalia for being so “judicially restrained.” Fact check: if you count up the decisions made over the duration of the last complete chief justice tenure (Rehnquist), Ruth Bader Ginsburg (she who is so often accused of “judicial activism” by the way) struck down the fewest laws. Followed by Breyer (also liberal, also accused of judicial activism- by name, in this book), followed by Rehnquist himself (conservative, and made some calls I don’t like, but overall good judge and great chief justice). In contrast, Scalia-the-originalist and Thomas-the-textualist were among the most judicially activist-y, surpassed only by O’Connor (conservative) and Kennedy (weirdo- but most people call him moderate). I’m juuuuuuust saying. Glass fucking houses.