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What should conservatives or libertarians even WANT the Supreme Court to do?

Posted by Al Barger on September 14, 2005 11:51 PM (See all posts by Al Barger)
Filed under: Politics, Books: Nonfiction, Books: Politics and Affairs, Books: Reference, Culture/Tech: Society, Politics: Law, Politics: U.S.

Shh! We're Writing the Constitution
Tomie dePaola
Book from Paperstar Book
Release date: March, 1998

Hard telling just what to make of SCOTUS Chief Justice nominee John Roberts. President Bush has clearly picked a stealth nominee with a very limited paper trail. Hopefully the Democrats will do the proper work of an opposition party, and make a good effort to smoke him out some on his judicial outlook.

So far though, after two days of hearings, they don't seem to be making much progress. They're so set on getting in little narrow points niggling after him over civil rights or abortion that they can't see the big picture.

The level of Democratic senatorial discourse might be taken from this bit of Dianne Feinstein's opening statement, "As the only woman on the Committee, I believe I have an additional role in evaluating nominees for the Supreme Court. This entails representing the views and concerns of American women throughout this process." Apparently, Ms Feinstein has an exceptionally sensitive and powerful senatorial vagina that acts as some kind of satellite dish collecting special girls-only signals being sent out by every woman- thus making her the only representative spokesperson on the committee for all American women. Seriously, this person is a US Senator.

Then there's Ted Kennedy, focusing like a laser on a couple of sentences of notes on a case Roberts worked on as a young attorney representing the Reagan Justice Department. The argument being proposed was that private colleges should be subject to federal anti-discrimination laws because some of the individual students get federal financial aid.

Roberts had a couple of sentences of notes suggesting that this was a thin excuse legally, and that if the administration wants to apply their rules to private schools then they should look for a better legal argument for doing so. A-ha, says Senator Kennedy in high dudgeon, so you're opposed to civil rights. Why do you hate black people so much? Obviously I'm paraphrasing there, as Senator Kennedy's not that articulate, but that was pretty much his gist.

One thing for Roberts, his total confident calm and self-control look pretty awesome. He sat there listening to Feinstein's vagina monologues and trying patiently to answer Ted Kennedy's ridiculous picayune hostility without bringing the pimp hand down on them like any normal person would badly want to. He just smiles and nods, somewhat the way one might nod and go along with a retarded person, carefully trying not to hurt their feelings by noticing that they are figuratively licking the windows.

Most liberal interest groups and many conservative ones likewise seem to be, as it were, constitutionally incapable of making the most basic, critical distinctions between political decision making versus judicial decision making. How "conservative" will he be?

It particularly irks me to see Roberts being rated based on political policy marks. Is Roberts too "pro-business"? Is he "pro-life"? A couple of the Republican senators seem to be wanting to get some public clue that he WILL overturn Roe.

What we're supposed to be looking for is primarily whether someone will impartially uphold the law and the US Constitution specifically. Ideally, it should make pretty nearly zero difference what the judge's personal views on abortion are. The question should be, will this person be a neutral jurist rather than a politician in judge's clothing legislating from the bench. Roberts made at least a couple of brownie points with me by likening judges to baseball umpires, as opposed to players or coaches.

Of course, the problem has been that the role of the judiciary has markedly headed toward policy making from the bench, largely in the direction of making liberal, socialist minded policies. Roe of course is the classic example, but only one among many. Conservative critics are inarguably right in this complaint.

I hasten to add, however, that it's not necessarily just liberals that are suspect. Retiring Justice O'Connor is, frankly, an awful justice. She may be a fine, well intentioned human being, but just exactly that she's rated a "swing vote" is a pretty good indication of her lack of virtue. Her vote obviously did a pretty big lot of swinging based on her personal political preferences.

It's not that she was any kind of radical. She pretty much split the difference on abortion issues, for example. By rights, you'd have to say that she was basically a moderate. Roe is safe, but she might deign to allow some leeway on partial birth abortions, say.

The problem is that these policy decisions are not supposed to be the prerogative of the judiciary at all. The fact that she is pro-choice shouldn't factor in. Back when she was a state legislator, THAT was when she should have been working those issues- not when she became a judge. Judges of the SCOTUS are not elected officials, and thus inserting your policy views from the bench is dictatorial. Thus (picking a perhaps milder term), I'd say that Justice O'Connor is an authoritarian usurper. Sandra Day O'Connor has proven to be an authoritarian moderate.

However, it's not nearly so simple as saying that you shouldn't legislate from the bench though, cause what exactly does that mean? Some conservatives would take that to mean basically that they don't much believe in judicial review. They'll call it judicial activism if the court throws out some questionable provisions of the Patriot Act, say.

However, judicial review is basically an absolutely unavoidable part of the job, whether you like it or not. The law naturally and by clever design comes from a mish mash of different places, from the constitution, from Congress, from state legislatures and local municipalities. Inevitably, there are conflicts. Congress says that there's no such thing as medical marijuana, some states very specifically say otherwise. If Dubya's Republican Congress says one thing, but the US Constitution says something different, then obviously the national charter supersedes the ephemeral political decisions of the current Congress.

There's a lot of possible debate about what exactly would constitute "judicial restraint" which of course everyone favors. Abortion law going forward- what would constitute the neutral parsing of the law? Pro-choice proponents are very adamant that Roe is long settled. Thus, overturning Roe would constitute "judicial activism" by overturning long-settled precedent.

That seems like a weak case on the intellectual merits. It may be the best argument the pro-choice advocates have for sustaining what was obviously a completely arbitrary decision to begin with, but still. Supreme Court Justice Roberts will be co-equal to those who made that bad decision in 1973. Sitting on the Supreme Court prior to him temporally does not grant those other justices legal authority. He would now be in the proper position to correct the mistakes of his predecessors.

Still, simply not wanting to upset the apple cart of precedent generally might be reasonably described as a "conservative" component of temperment. Imagine the political chaos that would result if the SCOTUS actually started enforcing the US Constitution, particularly the 9th and 10th Amendments carefully circumscribing the limits of the federal government.

What exactly would a conservative or libertarian actually WANT a Supreme Court justice to actually do? Theoretically, a "strict constructionist" would disallow, say, the entire Department of Education, Social Security, and all kinds of other stuff.

Now, as a libertarian, I'd be all in favor of getting the federal government out of all that stuff. It's not constitutional, nor right, nor good in practice.

On the other hand, we live in a democracy, or "democratic republic" if you want to be technical. Anyway, it's about the consent of the governed. Even if it might seem technically right, we can't have unelected judges massively overturning the clear wishes of the people.

For example, I don't believe in the whole jerryrigged Social Security system, but the vast majority of the American public obviously does. They've elected congresses for generations to put this stuff up. Whatever we do to fix this mess will ultimately HAVE to come from the elected legislature, not the appointed SCOTUS.

I don't particularly worship at the altar of "democracy." It's not my principle concern in politics, and I don't feel the need for permission from my neighbors to live as I will. Still, we have to live together, and the public would not stand for such usurpation from the courts. They'd be wrong even if they were right.

The basic problem is that we've gotten so far off the rails from constitutional governance that "strict constructionism" would also be extreme "judicial activism." Just how literally would Supreme Court Justice Roberts want to take the basic document? It does not seem obviously unreasonable to ask.

I don't even know just what answers I would want. Surely they should throw out the ridiculous and utterly arbitrary Roe decision. Plus, that's not undoing laws, but becoming slightly more restrained about arbitrarily throwing out the will of legislatures. But how far should they go?

A Supreme Court Justice Janice Brown might would be inclined to join with such as Clarence Thomas though, and start chucking out fat chunks of the whole New Deal. A simple, straightforward reading of the US Constitution would have the SCOTUS demanding an end to, for starters, the federal Social Security system.

That sure would LOOK like legislating from the bench, wouldn't it? It certainly would NOT look like anything that would be reasonably described as "judicial restraint."



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