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.”
Posted in Philosophy, Politics, Trends, Uncategorized
Tagged activist judges, democrats, GOP, john paul stevens, Politics, republicans, scotus, supreme court
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.
Jack Goldsmith recently reviewed John Yoo’s new book on presidential power. Goldsmith, you might recall, was named under George W. Bush to head the Department of Justice’s Office of Legal Counsel, where he ended up repudiating Yoo’s torture memos.
Goldsmith spends a lot of time discussing the history of a strong executive, and how liberals used to like it and conservatives hated it, and how that has changed since Reagan. He also discusses at length the Federalist Papers, as all such articles do.
But let me boil it all down for you, because here is the money quote:
“…constitutional theory is usually grounded in a theory of preferred outcomes.”
So take that, not just John You, but John Roberts, and Tony Scalia, and every other snotty jurist who thinks he or she has a monopoly on understanding the constitution.
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).
During last week’s confirmation hearings for Sonia Sotomayor, there were repeated calls from all concerned to show fidelity to the law, to call balls and strikes, to keep personal opinions out of judicial decision making. These statements were emblematic of the modern rules of confirmation hearings, in which any admittance of the role of personal interpretation will automatically raise the hackles of the other side, whether it’s John Roberts admitting “yes, I generally side with the powerful” or Sotomayor saying “as an underdog, I understand where underdogs come from.” Instead, everyone maintains the fiction that it’s all about facts and laws.
Of course, being a judge is very much about ruling on how the facts of a case fit the law as written. But sometimes the facts don’t exactly fit the law, and so the judge has to make some….wait for it….judgments. If it was all automatic, just applying the facts and law, then we could have machines do it, or bureaucrats. Even the Wall Street Journal recently noted that “judges are not algorithms.” If this judging gig was just calling balls and strikes, then the Supreme Court and courts of appeal and every other multi-judge panel would never have split decisions; everyone would simply agree on the facts and the law.
But we do have split decisions, because the facts are sometimes complicated and messy, and how a judge thinks can influence how they sort through the mess. Rather than pretending this doesn’t happen, wouldn’t we be better off addressing it and actually understanding how a nominee might rule? Maybe not. That might inflame senators’ passions so much that nobody could ever be approved. But it seems crazy to have a system where everyone is lying, we all know they’re lying, and the lies are essential to making the system work.
By the way, I’m not just talking out of my butt here. The friendly staff at the U.S. District Court listened to my diatribe and gently corrected me where appropriate.
OK, the justices didn’t exactly mention me in their decision, but they did unanimously (according to Scotusblog) rule against the Indiana pension funds who were whining that they hadn’t gotten enough money for their secured debt. The highest court in the country has thus decided that the Obama administration did not violate the rule of law in pushing through the Chrysler bankruptcy. Read here my post saying just that. Of course, some argue that this issue is too political for the Court to be focused just on the law, but if that were the driving issue here, wouldn’t this conservative court be likely to rule against Obama, not for him?