An indifference thesis: Constitutional law and politics in an era of “conservative domination” of the judiciary

Abstract

This chapter addresses commentary about constitutional law and politics in this current era of a conservative domination of the judiciary.¹ Its primary concern is the different ways in which a working majority on the Court and its judiciary of appointees by Presidents Reagan, George H. W. Bush, and George W. Bush might be conservative,² and the different ways in which domination might take place.³ The frame for the chapter is what I call an “indifference thesis” for analyzing constitutional law and politics. Stated boldly, the thesis is that there should be a commentary distinguished by an interpretive attitude that distrusts, and intentionally resists, analysis based on preconceived notions about the strengths and weaknesses of any constitutional law and politics, be it conservative or left-liberal.⁴ Perhaps, to many readers, an indifference thesis for commentary appears methodologically odd, if not politically perverse. Therefore, the first order of business is to try to make the thesis less odd and perverse by explaining its provenance and attributes.⁵

Citation

Strauber, I.L. (2008), "An indifference thesis: Constitutional law and politics in an era of “conservative domination” of the judiciary", Sarat, A. (Ed.) Special Issue Constitutional Politics in a Conservative Era (Studies in Law, Politics, and Society, Vol. 44), Emerald Group Publishing Limited, Leeds, pp. 35-71. https://doi.org/10.1016/S1059-4337(08)00802-8