What Should a 'Conservative' Supreme Court Do?

With President Trump's appointment of Justice Brett Kavanaugh, and perhaps more to come, many observers anticipate a conservative majority on the Supreme Court for the first time in decades. What should a “conservative” Supreme Court do? This is a harder question than it seems.

Constitutional law is a difficult subject for conservatives. For one thing, there are a myriad of right-of-center perspectives on the Constitution. Differences begin with the threshold question whether the Supreme Court is authorized to overrule laws as unconstitutional—the doctrine of judicial review.  Some conservative scholars, such as Christopher Wolfe, question the doctrine of judicial review, established by Marbury v. Madison in 1803 even though not explicitly mentioned in the Constitution. Others, such as Bruce Fein, writing in The American Conservative, deride this position as a display of “legal ignorance.”

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