Supreme Court Shouldn’t Solve Political Issues

In debates on the right to die, affirmative action and homosexuality, is the Supreme Court the best judge?

“The Supreme Court should avoid political thickets and leave Great Questions to politics, because the court may answer incorrectly and make things worse," says Cass Sunstein, a distinguished legal scholar at the University of Chicago.

Sunstein will argue his case in this year’s Nora and Edward Ryerson Lecture, “Constitutional Myth-making: Lessons from the Dred Scott Case,” at 5:30p.m. Tuesday, May 14, in Max Palevsky Cinema of Ida Noyes Hall, 1212 E. 59th St., on the campus of the University of Chicago. The lecture is free and open to the public.

Sunstein will base some of his arguments on the controversial Dred Scott decision of 1857 in which the Supreme Court legitimized slavery.

“Dred Scott was probably the most important case in the Supreme Court’s history–probably the most important constitutional case in any nation’s history,” Sunstein said. “But we have little, if any, sense of what it means or was even about–and we have much to learn from it as we face today’s issues.”

One lesson for today, Sunstein said, is that courts should not invalidate affirmative action. “The recent University of Texas case [in which the Fifth Circuit Court of Appeals struck down the race-based admissions system of that university’s law school] was, like Dred Scott, an effort to remove a big issue of principle from politics,” Sunstein said.

“With issues like affirmative action, homosexuality and the right to die, the Court should proceed cautiously, incrementally, and consider only specific facts. It should catalyze the political process, not pre-empt it.”

In addition to his Law School appointment, Sunstein is a professor in political science and the College and Co-Director of the Center for the Study of Constitutionalism in Eastern Europe at the Law School. His areas of expertise include administrative law, environmental law, welfare law, jurisprudence and constitutional law. He is the author of numerous articles and books, including After the Rights Revolution: Reconceiving the Regulatory State (1990), The Partial Constitution(1993), Democracy and the Problem of Free Speech (1993) and Legal Reasoning and Political Conflict (1996).

The Nora and Edward Ryerson Lecture was established in 1972 by the University’s Board of Trustees to give distinguished members of the faculty an opportunity to speak to the University of Chicago community about their life and work. The Ryerson Lecturer is nominated by a faculty committee appointed by the University’s president.