Griswold and Levy exemplify Supreme Court decision making on matters of fundamental social importance on no basis other than the justices’ arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. Because this constitutes an obvious abuse of office, convention requires that they make a pro forma attempt to show that the decision follows from the Constitution. This impossible task requires the permissibility of standards of reasoning in Supreme Court opinions that would not be acceptable in a discipline that aspired to the level of intellectual respectability of astrology. The justices, we are apparently expected to understand, are after all only lawyers, professionally permitted the unembarrassed assertion of whatever is needed to reach a desired result. The misstatements of fact and defects of logic, almost inevitable in Supreme Court opinions explaining rulings of unconstitutionality, do not make the rulings — any more than does the absence of a constitutional basis — less authoritative. authoritative. “We are not final,” Justice Robert Jackson famously pointed out, “because we are infallible, but we are infallible because we are final.” The Court is not supreme only in name.

http://www-hoover.stanford.edu/publications/books/fulltext/country/1.pdf
Lino A. Graglia "Constitutional Law without the Constitution: The Supreme Court’s Remaking of America"
http://www-hoover.stanford.edu/publications/books/fulltext/country/1.pdf

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December 2016

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