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Miscellaneous thoughts and ramblings
Tuesday, July 19, 2005
The Argument Against a Moderate Judge
A friend of mine (new to the right wing) suggested a week ago that since O'Connor is a moderate Bush should nominate another moderate. She argued that balance is what is needed in the Court, and though we are conservative, we shouldn't want a Court that is too far right. I disagree. The job of the court is to interpret the law, and as well as they can, try to divine the intentions of the framers of the Constitution or of the authors of the amendment in question. They should do so without personal bias and without regard to what they think would be best for America in 2005. They should faithfully judge the spirit of the Constitution. The people who are elected to decide what is best for America in 2005 are the legislature. They get to make new laws and are accountable to the people at the ballot box. They have the power to create brand new legal protections and rights, and if we don't like what they do, we replace them. The Courts do not have the power to create brand new legal protections and rights but rather have the duty to interpret the law as it stands. The problem is that this traditional Constitutional understanding of the role of the Court has somehow become conservative. A conservative judge is now known as a strict constructionist; one who interprets strictly the intentions of the original framers of the law in question. How is that conservative? That's just what a judge is supposed to do. Note that a conservative judge does not make up new conservative laws. For example I know of no federal judge who would use the equal protection clause to find that the Constitution forbids all abortion. Liberal (or activist) judges, on the other hand, create new rights and new laws that weren't there before, clearly infringing on the powers of the Congress and on the people's ability to choose their representatives. They do so with the noblest intentions; they sincerely want what is best for our country. But they exercise extraordinary power that is rightly not theirs and that erodes our democracy.

An example? I'm pro-choice. That means I don't think abortion should be banned. Nevertheless I read the tenth amendment and I think it pretty clearly establishes that the Federal Government has nothing to do with abortion. That means it should be a state issue. (By the way, to those who believe that abortion is murder and who would want to see a federal ban on abortion, I would say even murder isn't banned at the federal level. Murder is a crime in every state, but to raise it to a federal crime the murder has to cross a state line or kill a mail carrier or have some other federal entanglement. So even if you think abortion is murder, the most you should work for is to have it banned by your state legislature.) So that's why I'm one of the few pro-choicers who thinks Roe v Wade was a horrendous decision. It decided out of thin air that it was unconstitutional for states to ban abortion by a ridiculous stretch of the right to privacy. It was both a wrongful impingement by the federal government on state power and by the court on legislative power.

So I'm delighted Bush nominated a conservative, because that means he'll just do his job.
OK, what if you're a mail carrier who has an abortion in a clinic that straddles a straight line?
Then the government tears your house down to build a mall.
The job of the court is to … as well as they can, try to divine the intentions of the framers of the Constitution.

In Canada, our Constitution is regarded as "a living tree capable of growth and expansion within its natural limits." This is no recent innovation; the principle was enunciated in 1930.

The position you defend is known as originalism. There's a practical problem with it, which you seem to be alluding to. The framers of the Constitution did not write down their collective intention apart from the very text courts must now interpret. It may be difficult, 200 years later, to ascertain what their intention was.

Constitutions are deliberately expressed in broad language. The framers presumably intended the Constitution to accommodate developments that they could not possibly foresee at the time. Presumably it isn't desirable that the Constitution should be amended (an unwieldy and controversial process) to reflect every innovation as it arises.

For example, "in 1967, the Supreme Court of the United States applied the right against unreasonable search and seizure in the fourth amendment to electronic eavesdropping — a practice that could not have been anticipated in the eighteenth century." (I'm quoting from a textbook here, since I am no expert in American jurisprudence.)

Similarly with respect to social changes: "When the deficiencies of a purely formal theory of equality had been demonstrated to the Supreme Court of the United States, should it nevertheless have adhered to the separate-but-equal doctrine and perpectuated the segregation of the races in public schools?" (with reference to Brown v. Board of Education).

Would you expect the legislature to produce new legislation every time there is a significant innovation in technology or change of social mores?

I'm not sure I really oppose your position (it has the considerable merit of common sense) but I think you might need to express it in a more nuanced manner.

I'm big on nuance and precision, which makes me a real pain in the neck, I'm sure.
Perhaps there is ample opportunity for a judge's political bias to enter into Supeme Court decisions, thus the political wrangling over Supreme Court nominations. I don't think the Supreme Court hears simple, blank-and-white cases. ("I'm sorry, Mr. Schwarzenegger, I looked it up and the Constitution says you have to be born here to be elected President of the United States.") Nor is it sufficient to say let's only have Supreme Court judges that decide cases as if they were framers of the Consitution. There's a polical spectrum there as well. Do you decide cases like Alexander Hamilton or Thomas Jefferson? Or perhaps some other churchgoing Protestant rich white man? Not that there's anything wrong with churchgoing Protestant rich white men... My point is that Supreme Court appointments have a decidedly political element that warrants scrutiny.

And anyway, isn't all the fighting really about abortion?
Q: The idea of the Constitution as a "living document" is alive and well here too, but it's very misused. Scalia speaks about it often, critically. People speak of the constitution as a living document meaning that it can be interpreted in new ways as time goes on, ways that oppose the initial intentions of the framers. This is purely revisionist, Scalia would say (though he'd say it better than me). The meaning of the constitution is permanently fixed. It is a "living document" because the legislature and the states can amend it. That is, it is the people and their elected representatives that make it a living document, not the Court.

Of course as new technologies and new issues come up decisions must be made about how old principles apply to new specifics. That's precisely what judges should do. So the legislature should not have to produce new legislation every time there is a significant innovation, but they should pass new legislation if there is a "change of social mores" that they want reflected in the law. That is precisely what judges should not do.

How does any of that explain Roe v Wade? Because a cop can't break into my house without a search warrant, therefore the state of Utah can not ban abortion? Huh? Remember, I'm pro choice, but I trust the people Utah to run that state without my help and without Washinton's oversight, and so does the tenth amendment.

Oven: OK. And yes, I suspect all the fighting really is about abortion. I think churchgoing Protestant rich white men are alright, especially since with a few more years of hard work I expect you to be one! Of course you already have a great family, so you're rich beyond counting. (I know; I'm blowing the Sleestack cover again.)
It's also about gay marriage, crime prevention, the environment, affirmative action, and any other issue that liberals can't win on through the legislature.
Brown v. Board of Education was a bad decision, then, because it gave legal effect to a change in social mores?

One difficulty is, the legislature is often afraid to act on controversial issues. The political cost is too high to pay, even if human rights are at stake.

In Canada, we've arguably had too much judge-made law. But on principle, I think it's good for some tough decisions to get made in a context where political calculations don't enter into play. It isn't democratic, you're right, but the majority may not be keen to support the rights of a minority.

The alternative is to elect politicians with real guts. In Canada, they're in short supply.
Ralphie: Yes, the courts have been the last refuge of liberalism, as they have mostly been voted out of the executive and legislative branches.

Q: I don't know the details of Brown, but perhaps it was a decision that the equal protection clause makes "seperate but equal" unconstitutional. That's not giving legal effect to a change in social mores. That's deciding that seperate but equal was always unconstitutional; it was changing social mores that brought the case before the court.

Agree with you about brave politicians. That's part of why I like Bush.
My apologies, I shouldn't have assumed you would recognize the reference to the Brown case. It ended segregation in public schools. This link discusses the case, and summarizes the fact situation as follows:

In Topeka, Kansas, a black third-grader named Linda Brown had to walk one mile through a railroad switchyard to get to her black elementary school, even though a white elementary school was only seven blocks away. Linda's father, Oliver Brown, tried to enroll her in the white elementary school, but the principal of the school refused. Brown went to McKinley Burnett, the head of Topeka's branch of the National Association for the Advancement of Colored People (NAACP) and asked for help. The NAACP was eager to assist the Browns, as it had long wanted to challenge segregation in public schools. With Brown's complaint, it had "the right plaintiff at the right time."

So the case did give legal effect to a change in social mores. And it was wildly controversial. The National Guard had to escort black children to school and protect them in the classroom.

That's why I used this example. It concerned minority rights, and there would have been a huge political cost for any politician who dared to cross this particular Rubicon.

With respect to originalism, note the following paragraph from the link I provided:

The [Supreme] Court requested that both sides discuss "the circumstances surrounding the adoption of the Fourteenth Amendment in 1868." The reargument shed very little additional light on the issue. The Court had to make its decision based not on whether or not the authors of the Fourteenth Amendment had desegregated schools in mind when they wrote the amendment in 1868, but based on whether or not desegregated schools deprived black children of equal protection of the law when the case was decided, in 1954.

On your concluding comment — I don't like Bush much, but I agree that he has the courage of his convictions, and it's one of his finest attributes.
Q: I appreciate what you’re saying but we’re getting deep into stuff that I have very little knowledge about. This usually doesn’t deter me ;-) but I gotta believe a lawyer would shed a lot of light on this discussion. I’ll leave you with the last word.
But what if Brown were a bad decision? How would that make the originalist argument weaker? If the will to make the change was there, then it would have come about in the legislature eventually. I can't say I agree with judicial activism in theory just because I happen to agree with the outcome of a particular instance of it.
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