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C. Herman Pritchett saw politics in law without losing the sense that law was not simply politics. This synthesis from the 1940s was lost in the last half of the 20th century and it deserves to be brought back. While denial that politics matters is a staple of Supreme Court confirmation hearings, this position is no longer credible. In constitutional law in particular, politics has pushed law aside in the minds of scholars, journalists, and many Americans. This makes it hard to find a place for law in the study of the Supreme Court. This chapter advocates a return to the balance that was in place over 50 years ago when we were first taught that Supreme Court decisions were political.

Handler's genealogy of postmodernism recounted in his address recognizes its origin in aesthetic disciplines and its somewhat viral transcription into social jurisprudence: “the postmodern concept of subversion developed first in language and literary theory, art, and architecture and then spread into politics and law” (1992a, p. 698). Although Handler's rejection of deconstruction stems from what he sees to be its political quiescence, its association with aesthetic critiques of modernism haunts his claims as one source of its essential conservatism. Aesthetic values, he implies, remain distant or distinct from pressing issues of political and social inequality.

Litigation is part of the American policymaking playbook as diverse groups routinely turn to courts to pursue their agendas. All of this litigation raises questions about its consequences. This essay examines the literature on the political risks of litigation. It argues that this literature identifies four potential risks – crowd out, path dependence, backlash, and individualization – but offers less insight into the likelihood of these risks in practice. It ends by offering suggestions about how to advance our understanding of when litigation casts a negative political shadow in the current age of judicialization.

This chapter addresses commentary about constitutional law and politics in this current era of a conservative domination of the judiciary.¹ Its primary concern is the different ways in which a working majority on the Court and its judiciary of appointees by Presidents Reagan, George H. W. Bush, and George W. Bush might be conservative,² and the different ways in which domination might take place.³ The frame for the chapter is what I call an “indifference thesis” for analyzing constitutional law and politics. Stated boldly, the thesis is that there should be a commentary distinguished by an interpretive attitude that distrusts, and intentionally resists, analysis based on preconceived notions about the strengths and weaknesses of any constitutional law and politics, be it conservative or left-liberal.⁴ Perhaps, to many readers, an indifference thesis for commentary appears methodologically odd, if not politically perverse. Therefore, the first order of business is to try to make the thesis less odd and perverse by explaining its provenance and attributes.⁵

Stuart Scheingold's The Politics of Rights provided a path-breaking theoretical analysis of what he called the “myth of rights.” Scheingold's key insight was that even though rights were a myth, rights ideologies nevertheless left a significant imprint on American politics. The book charted a research agenda that has now been followed by a wide range of sociolegal scholars. Looking across that diverse body scholarship, I find convergence on two points. First, scholars claim that law and legal ideology contribute to processes of legitimation and to political acquiescence. Second, and seemingly in tension with the first, most people do not appear to believe in idealized legal myths and express only qualified commitments to legal ideals. Most scholars have responded to this tension by downplaying evidence that people have doubts about legal ideals, often treating expressions of doubts as evidence of confusion. As a result, scholars still conclude that residual commitments to legal myths help to explain legitimation and acquiescence. Such moves produce accounts of legal myths that are insufficiently attentive to politics and power. Scholars would do better to return to Scheingold's more ambivalent perspective on the politics of rights in order to understand the political consequences of commitments to rights’ ideologies.

It is widely recognized by scholars that superhero stories tend to glorify vigilante justice; after all, these stories often maintain that extralegal acts of violence are necessary for combatting existential threats to personal and public safety. This scholarly common sense fosters a widespread dismissal of superhero stories as uncomplicated apologia for an authoritarian politics of law and order that is animated by hatred of unpopular people and ideas. However, some prominent contemporary Batman stories, including those told in the graphic novels of Grant Morrison and in the blockbuster movies of Christopher Nolan, are ambivalent: in their portraits of Batman and Joker as dark twins and secret colleagues, these stories both legitimize and challenge the countersubversive politics of American law and order.

This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional justice. While international law has clearly rejected amnesties for past rights violations, domestic politics sometimes incorporate amnesties as part of larger peace settlements. This puts courts in the difficult situation of balancing the competing demands of law and politics. Courts have achieved equipoise in this situation by adopting substantive interpretations and procedural approaches that use international law’s rights-based language but without implementing international law’s restrictions on amnesties. In many cases, courts do this without acknowledging the necessarily pragmatic nature of their decisions. In fact, oftentimes courts find ways of avoiding having to make any substantive decision, effectively removing themselves from a dispute that could call into question their adherence to international legal norms that transcend politics. In doing so, they empower political actors to continue down the road toward negotiated peace settlements, while at the same time protecting the courts’ legitimacy as institutions uniquely situated to protect international human rights norms – including those they have effectively deemphasized in the process.

Officially, of course, the world is now post-imperial. The Q’ing and Ottoman empires fell on the eve of World War I, and the last Leviathans of Europe's imperial past, the Austro-Hungarian and Tsarist empires, lumbered into the grave soon after. Tocsins of liberation were sounded on all sides, in the name of democracy (Wilson) and socialism (Lenin). Later attempts to remake and proclaim empires – above all, Hitler's annunciation of a “Third Reich” – now seem surreal, aberrant, and dystopian. The Soviet Union, the heir to the Tsarist empire, found it prudent to call itself a “federation of socialist republics.” Mao's China followed suit. Now, only a truly perverse, contrarian regime would fail to deploy the rhetoric of democracy.

Nobody concerned with political economy can neglect the history of economic doctrines. Structural changes in the economy and society influence economic thinking and, conversely, innovative thought structures and attitudes have almost always forced economic institutions and modes of behaviour to adjust. We learn from the history of economic doctrines how a particular theory emerged and whether, and in which environment, it could take root. We can see how a school evolves out of a common methodological perception and similar techniques of analysis, and how it has to establish itself. The interaction between unresolved problems on the one hand, and the search for better solutions or explanations on the other, leads to a change in paradigma and to the formation of new lines of reasoning. As long as the real world is subject to progress and change scientific search for explanation must out of necessity continue.