'Whether or Not Special Expertise Is Needed': Anti-Intellectualism, the Supreme Court, and the Legitimacy of Law

Abstract

Recently, there has deservedly been much consternation regarding what some see as the increased politicization of the judiciary and the impact it could have on the law’s legitimacy within the broader political order. While that is a valid concern, we should not ignore other potential threats to the judiciary’s legitimacy, including the spread of a particularly virulent strain of anti-intellectualism. Notably, judges have shown an antipathy to expertise aimed not only toward highly technical or complex fields of study, but also toward scholarly fields that judges and lawyers have typically been willing to apply in their analyses, such as history. This article builds upon scholarship regarding the propensity of lawyers and judges to produce simplistic, selective, and ends-oriented histories, a practice that has come to be known as “law office history,” in support of their legal arguments and rulings. It does so by examining two Supreme Court opinions that represent fundamentally different judicial philosophies, thereby demonstrating that law office histories are not unique to any particular approach to judicial lawmaking. It then examines the history of how the judiciary (especially the Supreme Court) and the broader legal profession have come to attain their elite positions within the American social order. This history shows law’s position—indeed, its legitimacy—to be a tenuous one built in substantial part on the perceived intellectual character of law and the perceived intellectual aptitudes of its practitioners. This article thus concludes that the embrace of anti-intellectualism by the legal community, including the frequent dismissal of the work and methodologies of professional historians, threatens to undermine the rule of law itself.

Keywords: Supreme Court, anti-intellectualism, 2nd amendment, 1st amendment, originalism, living constitution, history, Donald Trump, Scalia, Brennan