Monday, May 20, 2019

Countervailing Judicial Power

Ezra Klein has a piece on Vos about "countervailing power", a concept from John Kenneth Galbraith. Briefly, he saw "big labor" as countering "big business", and "big government" as an essential balancing player.  So Klein summarizes his argument:
" If the [political] question is framed as socialism or capitalism, it’s difficult to state the obvious: We may need a bit more socialism now, even if that may create a need for more capitalism later.
But if it’s framed as the balance of countervailing powers, that truth becomes more obvious. There is no end state in a liberal democracy. There is only the constant act of balancing and rebalancing. The forces that need to be strengthened today may need to be weakened tomorrow. But first they need to be strengthened today."
I've always liked the Galbraith's concept.  I'm struck by a tweet from Orin Kerr, suggesting that if conservatives become dominant in the judiciary, it will evoke a countervailing response from legal academia.

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