getting over Bork, restoring our depleted legal capital

[Mark Graber]

Professor Franck writes:

In response to Mark Graber's earlier response to me, I would say that
if 
there was no golden age, there was surely a silver one (some may get
the 
comic books reference), or in Kent Newmyer's memorable book title, a 
"Heroic Age" of the Supreme Court.  And Mark subtly rearranges my
argument 
at one point.  Where I had said that the traditional law-politics 
distinction was once strongly held "even if it was often honored in the

breach more than in the observance," Mark has changed that to say that
it 
was an idea that "was more often honored in the breach."  Not quite the

same.  I think that some judges, some of the time, paid lip service to
the 
tradition while violating it (think of Taney in Dred Scott).  But to
say 
that this may have happened "often" is not to say that it happened even

most of the time.

Three points in response.

First, my apologies for misstating his position.  The joys of writing
too fast.  

Second, I confess to thinking the heroic age quite political for
reasons I've discussed in print (see Studies in American Political
Development 1998 or Mike Klarman's piece in Virginia on the heroism of
the Marshall Court). And see what Matt has written disagreeing with us.

Third, I wonder, even if correct historically, whether Matt's position
suffers from the same flaw I associate with Warren Court worship. Let's
suppose there was a golden age or an heroic age.  Let's further suppose
the age lasted for 30-50 years.  Wouldn't a good political science
conclusion be that that age was an aberration, though what the court
normally does is what the court did the rest of the time.  And this
further suggests that, given the deep structure of American politics, we
should figure out how the court might function best in normal eras than
hope for a new golden age.

MAG