Brian Highsmith Examines the Role of Courts in American Political Economy

Brian Highsmith (’17), Senior Research Fellow in Residence at Yale Law School, coauthored an article for the Law and Political Economy Project’s LPE Blog examining judicial intervention in the democratic process to enhance corporate interests as SCOTUS stays OSHA’s vaccine-or-test mandate (“The Role of Courts in American Political Economy,” Feb. 7). “While the process for enacting legislation requires multiple successive moments of consensus from different actors, there are very few practical constraints that limit what five determined justices can do on a court of nine that acts with the powers of review that ours has assumed for itself. By outsourcing the task of retrenchment to the judiciary, organized interests can concentrate their efforts on a known handful of committed loyalists serving lifetime appointments, whose decrees are practically unreviewable by the political branches. . . . By studying American courts from a comparative perspective, an important truth emerges: that we might best understand our judiciary as “structurally conservative,” due to its aggrandized role in our political process and comparatively distinctive features of its institutional design.”