FREE SPEECH 53: Should You Trust the Supreme Court? With Eric Segall
Free speech is hotly debated around the world today -- and will it be saved by the U.S. Supreme Court? Professor Eric Segall is skeptical about putting our faith and our fate in the hands of nine unelected, black-robed justices with lifetime appointments on the Court. He questions the outsized role of judges to overturn laws, which should only happen, he says, when there is clear and convincing evidence of an "irreconcilable variance" between the law and my constitutional rights. The Justices are no longer just impartial "umpires" deciding what is constitutional and what isn't, whether they are originalists or not - and this role of serving merely as "umpires" has changed long ago. What does originalism really mean, and how can the Constitution's original meaning be the ultimate criterion for today, even if today's readers could discern this meaning accurately?
We live in a world where even the originalists on the Court tackle laws that do not seem in direct conflict with the Constitution. How did we get here? Listen to a fascinating succinct history of our Supreme Court's decisions and how they have changed our public and political culture.
Can we imagine a world where the Supreme Court would act differently, and where political decisions would be largely left to elected officials, rather than a small group of unelected, life-tenured graduates of a tiny number of elite law schools? This was a lively conversation indeed, and I learned as much about the Court as about the difference between political and legal critiques of particular decisions that shape our daily lives as Americans.
Eric Segall is Professor of Law at Georgia State University's College of Law where he teaches federal courts and constitutional law. He is the author of the books Originalism as Faith and Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges.