An important hallmark of Fantasy Free Economics is the practice of studying people and institutions according to how they function, not according to how they are defined. Other economists do it the other way and thus have no chance of being right about anything.
When the founding fathers put the constitution together, they came up with three branches of government. One of these is the Supreme Court. Justices on the Supreme Court are expected to be independent and unbiased. There has always been an assumption that the Justices would be unbiased and independent.
Fantasy Free Economics treats Supreme Court Justices as political hacks who try to accomplish personal political agendas as well as bolster the positions of the president who appoints them. Are they the best political minds in the country? No, not by any stretch of the imagination. They are the best politicians among judges. This is not only true of Supreme Court Justices, it is true of judges in general. The best legal minds in the country are attorneys who are in private practice and who win cases.
When the constitution was written, the concept of best legal mind was a work in progress. The constitution was written so that an unlearned person would know exactly what it meant.
The customary practice of allowing political hacks to determine the constitutionality of laws is not part of the constitution and there is nothing written or chipped in stone saying it has to be that way. By knowing the political leaning of the justices, correctly predicting how each will vote is close to a certainty most of the time.
Neil Gorsuch is about to be confirmed as Trump’s first appointee to the Supreme Court. While held in awe, the Supreme Court has morphed into a rolling constitutional convention whereby laws can be upheld or ruled against according to which political agenda is in power at the time. There is nothing permanent about a Supreme Court decision.
It doesn’t have to be this way. Congress could set up a jury system so as to test every law for constitutionality before it becomes active. A Jury of citizens should determine the constitutionality of a law or a decision that is in question. Of all the institutions in government, there is only one which works somewhat according to how it was designed to work. That is the jury system. It stull works.