Tag Archives: scotus

The Role of the Supreme Court

Following up on last week’s post regarding the new opening on the Supreme Court, Dahlia Lithwick at Slate wrote a piece more up to her normal standards, discussing how a court that “shows restraint” essentially just perpetuates the political power dynamic currently in force, enabling tyranny of the majority, which is exactly what the founding fathers wanted the judicial branch to be a bulwark against.

Lithwick’s article draws heavily on this awesome NY Times op-ed by Geoffrey Stone, a law professor at University of Chicago. His money quote is here:

Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Lithwick also refers to this Huffington Post piece discussing how the Democrats have greatly improved their messaging on this matter, linking economic populism with the role of the Court, as in this quote by Vermont senator and Judiciary Committee chairman Pat Leahy:

“Congress has passed laws to protect Americans in these areas, but in many cases, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads, and making them protections for big business rather than for ordinary citizens.”

Advertisements

Supreme Court Nominee is Political, not Legal

Dahlia Lithwick has an article in Slate lamenting that the icons of liberal constitutional law are not even in the running to replace Justice Stevens, and are invariably depicted as radicals, while the equivalent judges on the right are likely to be nominated as soon as there is another Republican president.

Lithwick seems to think that this disparity is somehow part of the legal community, but in fact it has nothing to do with lawyers or the law. This disparity exists because Republicans are simply better at playing the game than Democrats are. Republicans are cohesive, all staying on message and using the same talking points, while Democrats tend to be all over the map. In addition, Republicans are far more savage, willing use words like “radical” or “threatening” to describe candidates (mild-mannered law professors, for the most part) whereas Democrats are more likely to use words like “gosh, I’m just not sure I agree with that man.”

Lithwick asks “Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?” as if law schools can somehow fix this problem. I hate to criticize Lithwick, since normally her writing is so good that I practically have a crush on her, but in this case she is missing the point. Law schools can’t solve this problem; voters can.

Judge Posner v. Justice Roberts on Gun Control

As usual, Judge Posner is erudite and concise in his discussion of the Supreme Court’s recent Heller decision regarding gun control in Washington DC. And he manages to incorporate a broader discussion on the merits of political vs. legislative action on controversial issues (eg. abortion).