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On "The Best Academic Work"

By Jack M. Balkin

Eric Posner?s recent essay in Slate claims "the best recent academic work (by people like Adrian Vermeule, Jeremy Waldron, Mark Tushnet, Cass Sunstein, and Larry Kramer) points out the thin moral, political, institutional, and historical basis for judicial supremacy." I confess to thinking the claim mistaken, at least on historical grounds. If one looks at newspaper reports of the debate over the effort in 1831 to repeal Section 25 of the Judiciary Act (the section that enabled federal courts to review state court decisions), a powerful case can be made that most antebellum Americans knew about and approved judicial supremacy with respect to both state and federal laws. I?m still working up the essay and, of course, I may be wrong.

What is more interesting for the present is that Professor Posner?s citations to "the best recent academic work" are all studies by law professors. Such academics as Keith Whittington, Sylvia Snowiss, Robert L. Clinton, and Matthew Franck have made similar claims (and had to go through at least as demanding review processes), but do not seem worthy of mention. Their omission is particularly notable for several reasons. First, a good many of the named law professors rely heavily on unnamed political scientists when writing. Cass Sunstein has always relied heavily on (and acknowledged) the works of Gerry Rosenberg. Larry Kramer?s argument about the original meaning of Marbury was first developed by Snowiss, Clinton, and Franck. Second, most of Posner?s essay largely repeats the findings of a generation of political scientists, none of whom are named in that piece. Significantly, perhaps Posner ignores the increased tendency of political scientists to document the political foundations of judiciary supremacy (see recent books by Keith Whittington, Ran Hirschl, and Paul Frymer). Courts, in this view, do not act against popular majorities, but tend to act only when authorized by elected officials. Perhaps this is not "the best academic work," but I suspect the best academic work is being done by practitioners in a good many fields. At the very least, law professors might be a bit more modest and talk about the "best recent work by law professors" when all they know about are law professors. Better yet, they might give some very talented, relatively unknown political scientists and historians some publicity.

Full post as published by Balkinization on March 24, 2008 (boomark / email).