Tushnet's Approach Concluded At Last!

The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyone a fair shot at making reasoned arguments that judges evaluate on the merits. And that means, for him, that good judges engage in legal reasoning, working with the plumbing of our constitutional system. Seidman argues that legal reasoning is so far removed from the way ordinary people think about the issues raised in constitutional cases that the judges Tushnet admires or hopes to see on the Court can’t resolve constitutional controversies in a way that those whose positions are rejected should or are likely to accept. Along the way we talk about the mindset judges should bring to their task, criticizing Justice O’Connor’s slogan, “Sometimes Wrong but Never in Doubt.”