So, enough about so-called "Reality." Let's talk about the administration!
My ruminations on the topic of reality are constitutively unhelpful (for anyone besides myself, I suspect) in trying to get a handle on what the hell is going on, in Bush's America. So I thought I'd see if I can't prepare for a topic ahead of time, by babbling about a couple of terms that are about to be heaved around our glorious capital. So let's think about "Judicial Activism" and "Stare Decisis."
Next week, the clueless goofball you see here on the left, fresh from appointing 17 people to important positions when THE SENATE WHERE HE HOLDS A MAJORITY WAS OUT OF TOWN--what a mandate!--is going to attempt to appoint the comely primate on the right to the supreme court, which self-proclaimed professor wonks like to call "SCOTUS", possibly to get the tingly frisson of using jargon, and possibly the satisfaction of having someone ask what, precisely, that could be. Not the subtle doctor!
My feelings about the battological malversationists in (sorry; "that constitute") the administration are such that, based on past experience, I can safely assume that this guy is not *my* guy. But I don't know a lot about him. I invite you--John Childrey, e.g., et. al.--to say nice things about him. Or mean things. Hell, say what you want. No-one wants to "discuss" Peirce. But how about the phantasmagorical spectre of "Judicial Activism"? Sounds scary! To hear the $hrub tell it, anyone who disagrees with him is a "judicial activist." Certainly on the side of those pesky Radical Militant Librarians who are making the FBI's job a living hell. As I shouldn't have to point out, that door swings both ways.
What's at stake here? The administration, in their capacity as people who think that re-naming things changes their essence, ladles that label on their foes. Yet they never seem to see judicial activism in cases with which they agree. (Many hippies are just as bad, or worse, vis-a-vis consistency.) Given my own (pragmatic, and largely Holmesian) view of what the law is, I am fascinated by the way in which it changes. Everyone can think of changes they'd like to make, but what's at stake here is basically the nature of that change.
I'm just introducing the topic here. Me, I'm drawn to the overly philosophical topic of Natural Law. That fine figure of statuary up top there is a cat named Hugo de Groot, a.k.a. Grotius. Nice guy. I'll work him up later on this puppy, if reminded. Grotius thought we could recognize what God would want us to do in situations not covered explicitly by the Bible. There are primary Laws of Nature that are God's express will, but we can use our noodles to work out some of the other stuff, secondary laws of nature. Reason mandates, e.g., that Great Britain (in concert with naval allies) not be allowed to blockade the Dutch. Groot? Dutch.
Natural Law Theory is often opposed to Legal Pragmatism ... but I can save all that up for some kind of spectacular blowout after young Chaka up there on the right is confirmed. I want to *talk* about judicial activism. So, persons--what do you think?
A closely related topic, and with almost as much jargonal value as 'battalogical malversationism', is that of stare decisis. This short link defines the persistently and perniciously mis-pronounced term as: "Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts." Because the Supreme Court is the highest court (I mean hierarchically--not that I don't think Scalia, Thomas & Roberts don't need a bong hit), this principal is *always* "before" the court. What have they said before? Were they right? Has the situation changed? Should changing circumstances even matter? What are the implications of what they say now? Hmmm. But really, what this term will be bandied about *for*, can be summed up in 2 words:
Dred Scott. Actually, of course, I really need 2.25 words or so ... Roe v. Wade. In fact, with regard to social conservatives, 'Holy Grail' would work just as well. His mighty tyrannical $hrubbery can talk all the smack he wants about not applying a litmus test ... he wants Roe dead. He wants it's family dead. He wants it's house, burned to the ground. And since social conservatives, who put this monkey in the White House (apparently fearing the horrible creeping degeneracy of Elton John's recent nuptials), have been putting up with rather a lot of sociopathic shenanigans because here, finally is a man of [editorial note: uniformly bad or no] character who will solve the number one problem facing America ... they feel they are owed. Don't believe me? Check out what they had to say about Miers.
Okay, I've veered off into the partisan--except, of course, I've been sitting here the whole time. Sinisterly, perhaps. So let me say this: I have absolutely no quibble with people who believe abortion is wrong, or even murder. I do not consider it murder, tho' it might very well be wrong; I think women should have the right to choose, especially considering what Alito has said about women's rights--figuratively: "Woman!? Make me a sandwich!" I don't think that only my view is reasonable, or valid ... it depends on what I value, and my convictions regarding the importance of what my buddy John Childrey points out is a "made up" right ... of privacy.
I do have a problem with people who harrass women (or anyone) doing legal things, and certainly those who threaten violence. Because they are terrorists. Sorry Bill O'Reilly, the fact that I don't believe that George Bush could beat a reasonably well-educated chimpanzee at checkers does *NOT* mean that I like terrorists. I can be in favor of a right without being in favor of the thing itself. I think Nazis should be allowed to talk their trash, but I don't agree with them a'tall. I think their philistine pig-ignorance reflects poorly on everyone with a brain. But they can spew that crap. Coulter does.
Judicial activism is, in part, about the extent to which judges can effect changes on the law. It *should* be the topic of neutral discussion. My boy O.W. Holmes, Jr.? Big on restraint. It's a complicated question, and really has to be viewed within the framework of Stare Decisis. The reasons for this should be evident, but the question is not simple. Values that inform this discussion passionate, on both sides, and will play out with regard to a couple of famous or infamous cases, but that isn't relevant to what I want to investigate, *unless* one believes that one's own desire to see Roe overturned (or upheld) dictates one's approach to the question of judicial restraint vs. judicial activism.
Discuss. I'll work up an investigation of the question of the relation between judicial restraint, or activism, and legal pragmatism. Gimme a few days and a chapter to my boss, who is beginning to regard me as if a dead farm animal he can barely stand to drag out of the way of his Suburban.
Now;
What do we think the proper role of the court is? What then should we look for in a justice? With that firmly in hand ... does Alito fare well for you, or no?
4 comments:
Howdy Matt,
John Childrey here. I went to law school with Matt. I'm a lawyer. Ugh! A government lawyer. ARgggh. A nasty prosecuting attorney - oh no!!
Anyway. I do have some comments on judicial activism. Hmmm. Where to begin?? Let's go right for the jugular - Roe v. Wade. In that case, the Supreme Court found that a woman has a Constitutional right to terminate her pregnancy. Sounds good, right? Empowers women. Gives them the right to choose what to do with their bodies, right? Right. Only here's the rub. There is no Constitutional right to an abortion in the Constitution. Oh, well, you say, but it's really the right to privacy that the court was looking at, right? Right! Wait a minute, there isn't a right to privacy in the Constitution either - in the actual text, I mean. There are lots of rights listed, but privacy ain't in there. Hmmm. Well then how did the court come up with it's decision in Roe?? They used all sorts of high powered arguments, extrapolations, whatever. Folks that like women having the right to choose to have an abortion think it's a great decision. Folks that think the fetus is alive hate it. I think it's a horrible decision - ONLY because I think it's very dangerous for 5 old folks in Washington to be able to bind the whole country with their opinion as to what rights are given to people by the Constitution. Very dangerous. What the Roe court did, really, was just pass a law that women can get abortions. Well, the Congress should be passing laws, not the Supreme Court. If folks don't like the laws Congress passes, well just elect new Congressmen. Can't vote justices out of office. And you can't just repeal what they do with - the President can't veto it and the Congress can't undo it. All because 5 folks on the Court say it's a Constitutional right. Very powerful - and potentially abusive. When does life begin?? That seems a perfect question for a democratic population to debate and let their elected representatives decide, but the Court has sort of stopped all that with their Roe decision.
But wait, there's more. When the Court creates a right out of whole cloth, YOU CAN'T RESTRICT IT!! No limits on how late an abortion can be preformed, no parental notification, no age limits, no restrictions will be tolerated. Well, you say, aren't rights sort of unrestrictable by definition? If you restrict it, it really isn't a right at all, is it? Hmmm. How about the right to bear arms - explicitly mentioned in the text of the Constitution. There are PLENTY of restrictions on that right. No concealed weapons. No automatic firearms. No weapons in courtrooms. All of these are great, common sense restrictions which have passed Constitutional scrutiny by the court. But when the legislature (any legislature) tries to limit some right that the Supreme Court made up, NO WAY - that's unconstitutional says the court and the limitation (passed by folks who took the same oath to obey the Constitution that the court's justices did) is struck down.
If the Congress had passed Roe v. Wade as a law, I would either agree with it or not based upon my personal views on the legislation. But I would believe the law was a legitimate exercise of governmental authority to enact. When it's forced on the country by the Supreme Court, to me, it's completely illegitimate and dangerous.
Hmmm. Good points, all. Similarly illustrative of the way in which it is a bit difficult to separate the policy implications from the personal bits, but you've summed up some of the policy problems with what we can go ahead and call "judicial activism." I agree 5 people can be dangerous. Have you read Bush v. Gore? I mean from a decision standpoint, given precedent ...
Let me add--just for me--that the policy danger in this *particular* decision is not as compelling to me as my assumption, I think backed by human nature, that abortions will continue to happen, especially for the rich (who can go elsewhere and hush things up), and in back alleys for the poor. But! And here's the kicker ...
When I make policy points about, say ditching FISA to spy, I make arguments exactly like that. But not here! So ... am I being inconsistent? And people who like the $hrubbery tend to go "Hey man! It's not as bad as the alternative!"
Convincing evidence either that we reach for whatever rhetorical tools are at hand, or that consistency is overrated. I think about these things, because I'm reflective ... I'm scared of people who can't distinguish between their opinion and THE truth.
By "exactly like that", I mean from the policy perspective ... I mean, in fact, that I make an argument with the same form as John's here. So either the cases are different, or I'm a-cheatin'.
I'll go ahead and say, first, that while I love the O.E.D., it is not determinative. You could perhaps use it ... especially the 3d edition or so, which I think was right around Constitution time, to help you ... but while I don't share John's willies w/r/t the implications of Roe, I think his objections can't be swept aside by referring to a dictionary. Furthermore, when John says "if congress 'passed' R. v. W.," then he very much IS talking about the law. Then it would be a law as envisioned by the constitution, which John is saying would be different than the situation here.
I asked for rumination on the *form* of judicial activism. You can believe that the Constitution creates the right, and Jason does; but you cannot--especially in this twitchy area--proclaim that it has. My problem with my central difference with John is that he could quite well be right as far as the pro forma aspects of the law go ... making me, of course, a judicial activist. But as I was pointing out, or trying to, any change made by subsequent courts--the essence of common law, over time--is judicial activism of a kind.
For example, if slavery was still "legal", or women were prohibited from voting, I would feel that the *right* thing to do would be to change that, and I wouldn't care that much who did it.
Now, to return to my reflexive point--if the $hrubCo. puts Chaka on the Supreme Court, and they say George can do whatever he wants; suddenly I'm going to be an "originalist" and start whining about those old bastards subverting the intent of the founders w/r/t checks and balances.
So John has made a good abstract argument that facially does not depend on his gut reaction to the thing in question. A related question to my own worry is this ... if John is in favor of, say, no oversight for the executive branch, would he complain about a "made-up" permission by a different 5 peeps than the ones who decided Roe? If he does, he either isn't consistent ... or doesn't see that in the same light.
Which highlights the overall problem: How do you separate the emotional bits?
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