This is a new paper that I have forthcoming in Green Bag. I’ve always wanted to publish something there, but until now I never had anything that would work (in other words, under 5,000 words and less than fifty footnotes). Readers of CoOp will find the arguments familiar, as I’ve posted about them previously.
One point that I plan to elaborate further in my revisions is the thought that the extrajudicial or partisan scope of what the Justices could do shrank dramatically in the 1960s in part because the scope of their judicial authority increased. More on that another time.