As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
This past Thursday marked the 75th anniversary of two foundational New Deal decisions, handed down on Monday, April 25, 1938: Erie Railroad v. Tompkins, and United States v. Carolene Products. The American Enterprise Institute celebrated this day of infamy with a two-part event. The tape is here.
I strongly recommend it. You may want to skip the first 13 minutes (some clown wisecracking about the dairy industry’s contribution to ConLaw) but you do not want to miss the main events:
- A lightly moderated debate between Richard Epstein (NYU Law School) and Jack Balkin (Yale Law School), on the true meaning of the New Deal Constitution. “Spare me the cartels,” versus “Let’s hear it for political experimentation.” Not news, exactly; but it’s a rare treat to see these two scholars and gentlemen (friends and mentors both) push back against each other in this format, which worked brilliantly.
- A stirring panel discussion between Barry Cushman (Notre Dame Law School), Randy Barnett (Georgetown Law Center), Jeremy Rabkin (GMU Law School), and Suzanna Sherry (Vanderbilt Law School), probing the deeper mysteries of Carolene Products and Erie. Truth be told, I didn’t know half this stuff and haven’t thought enough about the other half. Barry Cushman is awesome on how tenuous the Carolene Products majority was; Randy Barnett is equally impressive on the Progressive overreading of the case. (Plus, check out the anecdotes. E.g., Carolene Products builds a plant right on the Indiana-Illinois state line, so that the production is “in-state” on both sides and therefore beyond Congress’s commerce power. They think they can get away with that—after the New Deal??) Jeremy Rabkin argues that Erie and Carolene Products rest on a common, nasty premise (the complete randomness of private orderings, which entails that political institutions should feel free to experiment as they see fit: otherwise, markets might break out). Suzanna Sherry notes that the Court lacks the nerve to go to that extreme; there is something half-hearted about both decisions. I’m inclined to think that both are right. The tension is worth thinking about.
I salute AEI for putting on this show. It deserves a wide audience.