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The process leading to the eventual swearing in of Amy Cony Barrett as an Associate Justice of the US Supreme Court on 26 October 2020 (here) has absorbed the American elites, no elite field more than ts lawyers and lawyer academics. There was good reason for that, of course. And that is the problem. Having legalized politics over the course of the last century, and constructed the judiciary as its arbiters, the fortunes of political factions ride on the selection of appointees to its highest court. Serendipity and longevity favored the liberal faction in the short run--producing majorities or close dissents by a group of jurists who held on during the last years of the last Democratic Administration. But in the long term, it appears, fortune favored certain factions of traditionalists, especially since the (to their political enemies) unexpected election of Mr. Trump in 2016. So now, having invested authority and legitimacy in the courts, having placed them as the overseers of law, of administrative discretion, and of the meaning of political action, the political enemies of the forces assumed to be represented by the newest Associate Justice face the prospect of a court which would no longer reliably be their instrument (at lest from the perspective of ideology)
American philosophy of law is better understood as theology than as that traditional American academic or pragmatic discourse that styles itself philosophy. The mechanics of an American philosophy of law provides a basis in reason for an American theology of faith in the perfectibility of law. The relationship among reason, faith, and truth (perfection) better defines an American philosophy of law than do traditional, merely rational, conceptions. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law,' in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009).
Americans continue to ask a sideways (I was going to write "wrong" but that itself suggests the alignment of law with some sort of state pf perfection) question of their law and of their judges; they ask if the law is perfect and the application is the right "one." They seek judges who can be instruments of this striving toward perfection--will the judge deliver the "right" result in the form of a "correctly written" opinion? Perhaps they might better ask whether the law is suitable for the times and whether the judge is able to deliver some sort of plausible interpretation. The core question, perhaps, then should be plausibility rather than perfection. Perfection belongs to the realms of morals, politics, theology, and ideology--subjects suitable for argument, and battle in which the legal system serves as crucible. Americans, however, have long rejected the notion law follows rather than leads social transformation. It is just that the ancient document through which this transformation is to be realized continues to pull in the opposite direction in a sometimes most inconvenient way.
Still, Americans now embrace the ideology of perfection. A perfectible law requires perfectible jurists. Neither is possible. Our system was not designed to produce the perfect state, reflected in perfect law, overseen by a perfect magistracy. Americans once left that striving toward perfection to moralists, politicians. . . . and eventually to our Leninists. The task of the law (once essentially private) was to strive toward perfectibility as it suited the times. It was left to moral-politics to guide suitability. That is both the genius and the tragedy of the contemporary American political-juridical system, now built as it is on the necessary scientism (ad with it notions of perfection) of the administrative state. The conflict around the suitability of Amy Coney Barrett, then, reflects the way law is now understood as the expression of a striving for (eternal?) perfection--a theological and Leninist conception--one that requires the perfectible instrument for its delivery. And it is to that that these brief reflections are directed.