Supreme Hubris: How Overconfidence Is Destroying the Court―and How We Can Fix It

How to repair the dysfunction at the Supreme Court in a way that cuts across partisan ideologies

The Supreme Court, once the most respected institution in American government, is now routinely criticized for rendering decisions based on the individual justicesâ partisan leanings rather than on a faithful reading of the law. For legal scholar Aaron Tang, however, partisanship is not the Courtâs root problem. Overconfidence is.

Conservative and liberal justices alike have adopted a tone of uncompromising certainty in their ability to solve societyâs problems with just the right lawyerly arguments. The result is a Court that lurches stridently from one case to the next, delegitimizing opposing views and undermining public confidence in itself.

To restore the Courtâs legitimacy, Tang proposes a different approach to hard cases: one in which the Court acknowledges the arguments and interests on both sides and rules in the way that will do the least harm possible. Examining a surprising number of popular opinions where the Court has applied this approachâranging from LGBTQ rights to immigration to juvenile justiceâTang shows how the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide our nation.