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This response to Professor Dan Kahan's recent Harvard Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, argues that while Kahan accurately describes the contemporary "neutrality crisis" and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. Kahan attributes the crisis to "motivated cognition," and asks judges to adopt techniques that rely on and foster an underlying popular agreement about cultural values. This response essay instead acknowledges the existence and inevitability of contested values in our constitutional democracy. The essay contends that the real causes of the neutrality crisis are the declining credibility of expertise and a growing popular belief – spread by legal academics (and others) who accuse the Court of politically motivated activism – that judges are legislators in robes. The solution thus cannot come from judges, but depends on a fundamental change in how we describe and criticize the Court, its Justices, and its decisions.

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme Court. Nevertheless, I believe that we can find an important degree of common ground by focusing on the essential elements of sound constitutional doctrine as an abstract matter. Even if we cannot identify standards to evaluate outcomes or approaches, we can at least specify the minimum requirements for sound doctrine. Thus we can come to agreement about how to evaluate the Supreme Court (and its Justices) at some basic level. In this Article, I identify the four necessary pillars underlying sound constitutional doctrine. By doing so, I hope to begin a conversation about the courts and the Constitution that, unlike most such conversations, does not end in a political impasse. The Article proceeds as follows. Part I sketches out the four pillars of constitutional doctrine. Part II provides a practical illustration of these essential principles by using them to test the soundness of a recent little-noticed Supreme Court case that I believe violates all four principles. Part III broadens the focus to examine other recent Supreme Court cases, demonstrating the usefulness of my four pillars to critique judicial output independent of political valence.

Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame. If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers. We thus should not be surprised if judges have, as Professor Ristroph suggests, lost their faith in the Constitution. We have led them into the wilderness.

Sanford Levinson calls for a new constitutional convention in Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). This review explains how Levinson overstates the Constitution's defects and understates the risks of submitting it to a constitutional convention for revision. It exposes the hidden biases in Levinson's analysis and defends the counter-majoritarian aspects of the Constitution that Levinson criticizes.

This essay was presented as the 2006 William Howard Taft lecture at the University of Cincinnati College of Law. It suggests that the conflation of politics and law - the view that judges are not legal experts but rather legislators in robes - is part of a deeper and more worrisome trend. We do not see judges as legal experts because we no longer believe in expertise. We have, in other words, begun to conflate politics and knowledge. We are moving toward a world in which the creation of knowledge is not the province of experts, but is instead produced by popular vote. This essay explores and critiques that trend.

Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modern Supreme Court ranges from open hostility to a position similar to Winston Churchill's on democracy: It is the worst way to implement a Constitution, except for all the rest. This essay, part of a larger book project with Daniel Farber, provides one explanation of the source of the hostility, defends judicial review against its critics, and makes a few suggestions for improvement.

Not every constitutional case requires recourse to first principles, and indeed, most require more subtlety than such recourse can produce. The Rehnquist Court's free speech cases provide an example of the benefits of a more nuanced and pragmatist approach in the context of a mature jurisprudence. Rigid tiers of scrutiny are simply not flexible enough to accommodate both the legitimate goals of the legislature and the need to guard against illicit attempts at pure censorship of unpopular ideas. Some form of balancing-whether identified as such or simply evident in the application of intermediate scrutiny-is necessary to avoid either too much or too little invalidation. Inevitably, Justices will disagree (as will the rest of us). But that disagreement is narrower, less bitter, and less able to force precedent in bad directions when it comes in the form of disputes over practicalities rather than principles. As the pornography cases illustrate, a careful attention to context also forces judges to confront difficult issues by rising above their own prejudices rather than sweeping them under the rug through superficial analysis and meaningless buzzwords. Perhaps other areas of the Rehnquist Court's jurisprudence could benefit from the lesson provided by these free speech cases.

An examination of the Supreme Court forecasting project from a holistic perspective that highlights predominant variables for each justice contends that predictions for Justices Ginsburg, Breyer, & Souter turn on the predicted vote of Justice O'Connor while the predicted votes of Chief Justice Rehnquist & Justices Kennedy & Thomas turn on the predicted vote of Justice Scalia. Consideration of pivotal votes of Justices O'Connor & Scalia reveals an emphasis on either politics or a seemingly random factor. Success rates for individual justices by subject are examined to suggest that liberal justices vote the law, conservative justices vote their politics, & centrist justices do neither. The statistical model did best in areas with high political salience while the experts did better in more legalistic areas. Three specific cases are detailed. It is concluded that the term examined may be unrepresentative of this Court & suggested that the project be repeated in a more representative term to determine whether the results are consistent or an anomaly. 1 Table, 1 Figure. J. Lindroth

What do the following cases have in common? In Boy Scouts of America v. Dale,2 the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of sexual orientation. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,3 the Court upheld the right of parade organizers to exclude gay-rights banners. In Zelman v. Simmons-Harri4s , the Court permitted government funding of religious schools through vouchers issued to low-income parents. And in Rosenberger v. Rector and Visitors of the University of Virginia, the Court required state funding of the printing costs of a proselytizing religious publication. In each of these cases, a comparatively "conservative" association was pitted against "progressive" ideals. In each of these cases, the Court sided with the association. Do these cases therefore represent a conservative interpretation of the First Amendment? In particular, is a conservative Court overprotecting conservative associations that are intermediate between the family and the state?' I would suggest that labeling these cases as conservative is a mistake. Each can be described in either liberal or conservative terms.7 It is progressive to allow citizens to come together in smaller communities that define their own goals and values, even if-or maybe especially if-those values are at odds with those of the larger polity.8 The state should not be permitted to impose its own values on such communities, whether it does so directly by imposing membership requirements or indirectly by withholding funding. On the other hand, it is conservative to allow individuals to segregate themselves from those they consider inferior or offensive because such segregation diminishes the equal citizenship status of the excluded groups. It is also conservative, in a religiously pluralist society, to use coercively raised monies to fund organizations whose primary mission is the teaching of specific religious doctrine. A better way to ...