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126 Harv. L. Rev. F. 1 (2012-2013)

handle is hein.journals/forharoc126 and id is 1 raw text is: THE DISDAIN CAMPAIGN Randy E. Barnett* You run one time, you got yourself a set of chains. You run twice you got yourself two sets. You ain't gonna need no third set, 'cause you gonna get your mind right. And I mean RIGHT. Take a good look at Luke. Cool Hand Luke? - The Captain, Cool Hand Luke' In her Foreword,2 Professor Pamela Karlan offers a quite remark- able critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest to- ward Congress and the people. My focus here is not so much on the content of the doctrine but on the character of the analysis.3 She de- scribes Chief Justice Roberts's opinion of the Court as a thinly veiled critique of Congress: the fools couldn't even figure out how to struc- ture section § 5000A to render it constitutional.4 And of the Chief Justice's attitude, she says that [h]e conveyed disdain even as he upheld the Act. In her conclusion, she asks, if the Justices disdain us, how ought we to respond?6 This question echoes how she begins her provocative piece: The Court's dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.7 Although she also offers insightful observations comparing the Ro- berts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: Democracy and Dis- dain. According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don't have their minds right. It is this quite distinctive thesis I * Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. Pro- fessor Barnett was one of the lawyers representing the National Federation of Independent Busi- ness in its constitutional challenge to the Affordable Care Act. 1 Cool Hand Luke (1967), FILMSITE MOVIE REV., http://www.filmsite.org/coo13.html (last visited Oct. 30, 2012). 2 Pamela S. Karlan, The Supreme Court, 2o1 Term - Foreword: Democracy and Disdain, 126 HARV. L. REV. I (2012). 3 Id. at 44. 4 Id. at 5 0. 5 Id. 6 Id. at 7 1. 7 Id. at 13. I