Supreme Hubris: How Overconfidence Is Destroying the Court-and How We Can Fix It

The Supreme Court is criticized for rendering decisions based on partisan leanings rather than a faithful reading of the law. Legal scholar Aaron Tang proposes a different approach to hard cases: one in which the Court acknowledges the arguments and interests on both sides and rules in the way that will do the least harm possible. He suggests that the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide our nation.

Format: Hardback
Length: 328 pages
Publication date: 10 October 2023
Publisher: Yale University Press

The once-respected Supreme Court has faced widespread criticism for making decisions based on partisan ideologies rather than a faithful interpretation of the law. Legal scholar Aaron Tang argues that the root problem lies not in partisanship but in overconfidence among conservative and liberal justices. Both sides have adopted an uncompromising tone of certainty, believing that they alone possess the expertise to solve society's problems through lawyerly arguments. This approach has led to a Court that lurches from one case to the next, delegitimizing opposing views and undermining public confidence in its legitimacy.

To restore the Court's credibility, Tang proposes a different approach to hard cases: one that acknowledges the arguments and interests on both sides and rules in a way that minimizes harm. By examining a surprising number of popular opinions where the Court has applied this approach, ranging from LGBTQ rights to immigration to juvenile justice, Tang demonstrates how the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide our nation.

Tang suggests that the Court should adopt a more humble and collaborative approach, seeking to find common ground and balance competing interests. This requires a willingness to listen to and consider the perspectives of those who may disagree with the Court's ruling. It also means recognizing that there may be no perfect solution to every problem, and that the Court's role is to weigh the available evidence and make a decision that is fair, just, and consistent with the Constitution and the principles of legal precedent.

By adopting a less confrontational and more nuanced approach to hard cases, the Supreme Court can regain its legitimacy and serve as a model for other institutions seeking to resolve complex disputes. It is important to remember that the Court's decisions have far-reaching consequences for our society, and that it must be guided by a commitment to impartiality, fairness, and the rule of law.

Dimension: 216 x 140 (mm)
ISBN-13: 9780300264036