Wednesday, January 22, 2014
From John Hart Ely, "The Wages of Crying Wolf" (here):
It is . . . a very bad decision. Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's —it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
I think Ely's "it won't" and "it doesn't" miss the mark, and his "because" in the last sentence is incomplete. That said, the critique (it seems to me) remains devastating.