Tennis without the net

Yesterday, Scott linked to Peter Berkowitz’s piece in the Weekly Standard which raised this question in connection with the Supreme Court’s recent 8-0 decision in Rumsfeld v. FAIR: “How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?” The answer, I think, is that many law professors of high rank and distinction, having swallowed or been swayed by “critical legal theory” during their formative years, believe that there are no right or wrong (much less straightforward) answers to legal questions — only right or wrong substantive outcomes and right or wrong gestures. Think of these professors as enjoying a game of tennis until Chief Justice Roberts put up a net.
But let’s not forget that these worthies encountered no net at the court of appeals level. And, as John said, they might well have succeeded with their game before the Supreme Court had it been “in liberal hands.” So at some level the deep cynicism of the liberal professors may be justified.


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