Skip to content

Mark Tushnet, Harry Kalven and Kenneth Karst in the Supreme Court Review: Reflections after Fifty Years, 2010 Sup. Ct. Rev. 35.

Abstract: This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitutional law, the articles are entirely doctrinal – and not the worse for that. The articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago. The Essay concludes by speculating that the rise of “constitutional theory” explains the disappearance of the sensibility Kalven and Karst exhibited. That rise may have conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects. The ideas that the constitutional questions the Supreme Court deals with are genuinely difficult and that the Justices, people of varying intellectual ability, can reasonably disagree over those questions are almost completely absent from today’s constitutional discourse – and those who try to advance those ideas are dismissed as naïve (fools) or as pursuing a concealed political agenda (knaves).