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August 26, 2005

A Confused Judiciary

Between the battle for the filibuster in the Senate and the Roberts confirmation brouhaha, it's been an interesting year. The confirmation wars brought forth much confused rhetoric from our public servants over their respective roles, prompting me to wonder whether they're genuinely confused about their duties or just pandering to an ill-informed and lackadaisical electorate.

The madness started with the Democrats in the Senate. Outraged over the notion that 4 or 5 Senators from the minority party do not have the right to block the entire body from voting on candidates who would sail through if allowed to go to a full vote, they righteously intoned that if the so-called 'nuclear option' were invoked, it would be 'anti-democratic' and 'anti-Constitutional', (as though it were democratic for the will of the minority to overrule the majority and Constitutional for an extra-Constitutional Senate rule to override the highest law of the Land). They went on to opine that 41 Senators really represent "the will of the people" anyway, since the Blue states are more populous than the Red states; thus managing in a Herculean feat of blithering ignorance to wilfully ignore the intent of the Framers in allotting 2 Senators per state to counterbalance the more representative (hence the name) House. An odd argument for the Party which introduced a bill requiring a mandatory day of study on the US Constitution in all US public schools. Perhaps the good Senators should take their own refresher course?

But it is not only Senators who fail to see Constitutional roles clearly: that disease seems to have spread to the Supreme Court as well. Recently SCOTUS retiree Sandra Day O'Connor was widely lauded for her 'common-sense' view of the Law, even if, after Kelo v. London, more conservative members of the bench took rather a dim view of her penchant for international opinion-shopping:

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Her retirement has prompted alarmist fears of a return to Originalism, that Dread state whereby We The People might actually find ourselves in the grip of Limited Government once more: victims of the loathsome and restrictive Checks and Balances put in place by those hateful, buzz-killing Founders. Bummer...

Those who still dream of a Living, Breathing Constitution fear nothing more than horrid, activist judges like John Roberts who long to wrest the wheel of Power away from the Judiciary and return it to John Q. Public. What a scary thought: we have met the enemy, and he is Us. God forbid that we should control our own destiny. But, as Dahlia Lithwick proves, the Dream Lives On in the democratic breast, even if no one seems quite able to defend it intellectually, or even articulate why it should become reality:

All this talk of the Iraqi Constitution—or lack thereof—serves as a useful reminder that a country's constitution is only as useful as the tools that will be used to interpret it later. As the most recent "Justice Sunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.

To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate."

Why stop here? It's not just their 'personal preferences' anymore. We are now bringing in not just American law, but foreign precedent as well. Look at Kelo - what a disaster for personal property rights. If any single case points up the problems with lack of faithfulness to textualism, when there is clear intent, that case should do it.

But there is a more fundamental problem than adherence to the text of the Constitution, and I believe it is touched upon in Judge Breyer's response to his colleague Antonin Scalia's work:

When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done.

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

I am going to jump completely off-topic for a moment to tell a story that may seem unrelated, but if you'll be patient, I will make the connection. The other night I had an awful migraine, so I may not remember the exact details, but since I felt so bad I just heated up some homemade split pea soup I had made earlier for dinner for the Unit when he got home. We were sitting in the living room eating, and he was watching a history show about WWII, McArthur, and the culpability of the Japanese Emperor Hirohito (I'd bought him a biography of Hirohito for Christmas last year).

One interesting part was how in Japan, it was forbidden to blame the Emperor after the war. And a series of executions were held, during which Tojo was executed. He refused all defense, claiming he was happy to die; thus, Japan would be purged of all shame. Even through my rather extreme pain and nausea, this really struck me forcefully. I commented to the Unit, "That is so un-American a concept. Can you imagine an American doing that? Viewing himself, not as an individual, but as part of history, part of the larger picture?" We talked a bit - this is something we've discussed before because I suppose we both share the same aesthetic: that this was a fitting end. He did the right thing. His death closed the chapter and allowed everyone else to move on. The debt was paid. I think I would have made the same decision. But few Americans would have seen it that way.

It has struck me, over and over again this year, how few of our public servants such have a restrained view of themselves. How few see themselves as, not parts of a working whole, but somehow as all being prime movers. It is as though they think they must take on all roles in the government; they are not content to perform the task assigned to them by the Constitution.

And so we get the Senate Minority Leader (who should know better) arguing that a Blue State Senator is "more representative", "more democratic" than a Red State Senator, when in fact the entire role of the Senate is to be a deliberative, restraining hand on the more passionate, democratic House of Representatives. But not to stop them from doing business entirely or to cut off ALL debate - as this filibuster business is doing. That is wrong and an abuse of taxpayer money. Senate rules should ensure that there is adequate debate - not prevent it entirely. That is fundamentally anti-democratic and anti-Constitutional, because it means that the people's representatives are not heard, whether it happens at the will of the majority OR the minority.

And we get judges, like Justice Breyer, and Justice O'Connor, who have somehow convinced themselves that their job is not merely to act as interpreters of the Constitution (in essence, traffic cops), but as a second legislature:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.

Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."

The best answer I can give to this, not being a lawyer, is a common-sense one: the Law of Unintended Consequences. We have seen a veritable explosion of law, rules, and regulations in this country. Like the tax code, our legal code has become impenetrable to the layman. Our federalist system really is no more: the encroachment of federal over state bureaucracy is all but final.

Each new decision becomes precendent for others, spawning a chain of telescoping and unforeseeable consequences that stretches as far as the eye can see. Anyone with even an ounce of sense can see this.

Given that this is so, does it not make eminent sense to do as I have seen John Roberts do, time and time again? Leave law-making up to the state and federal legislatures of this nation (as the Framers intended) and issue rulings that are as narrowly-focused as possible?

Though ascribed to Hippocrates, the familiar admonition: "First, do no harm...." is not in the Hippocratic Oath. But it is such good advice that any public servant would do well to take it to heart.

There is an old saying: "Too many cooks spoil the broth". To perform one's own appointed task, wisely and well, is no shame. Government works much better when there are checks and balances, when no branch overreaches and each arm functions within its appointed sphere.

Unfortunately we exist in an Age when respect for rules and hierarchy is at a low ebb. Everyone wants to be in charge and no one wants to be a team player. But some sense of structure is absolutely necessary in an organization as large and complex as the federal government. Even a body as small as the Supreme Court will not function well if some of the members believe they have somehow been given a charter that supercedes the original instructions laid out for them at the time they accepted their appointment. And it is a measure of our ignorance and how dysfunctional our society has become that those who argue for judicial constraint are being cast as extremists who threaten the future of democracy as we know it.

I would recommend to Justice Breyer and all those who advocate a Living, Breathing Constitution, the following homework assignment:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Posted by Cassandra at August 26, 2005 07:11 AM

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Tracked on August 26, 2005 11:32 AM



(The sound of your post *going over my head*)

Tell me if I got this right, Justice Breyer is a punk and Roberts on the court will help even the playing field?

Posted by: Lisa at August 26, 2005 01:04 PM

Well, that's my take at least.

Maybe I didn't make any sense (wouldn't be the first time).

I just think that the Constitution lays out a very clear-cut framework for the three branches of government to work together, each performing a limited set of tasks.

When you have the Senate trying to behave like the House of Representatives and the Supreme Court trying to pass laws and Congress trying to step in and intervene in court cases, things start to get massive torqued up.

Sometimes we have to accept that government cannot address all ills, IMMEDIATELY. This is part of what Roberts has been criticized for in some of his rulings (like the much-ballyhoo'd French-fry case, where a 12 year-old girl was arrested for eating a single french fry on the Metro).

Now even Roberts agrees that was a dumb-ass law.

But he also said: IT IS NOT MY JOB AS A JUDGE TO OVERTURN THAT LAW. IT IS THE JOB OF THE METRO AUTHORITY. And as long as I can see SOME legitimate govt. purpose is served by that law (and he did: it req'd that she stay long enough that her parents come pick her up and be notified that she has done something wrong) then I will not second-guess the people, because I do greater damage by over-exercise of judicial authority. I return the power to the people and let them decide what to do in this instance.

And indeed, in the fullness of time, the WMATA looked at the law and decided that it was, indeed, a dumb-ass law and changed it.


Representative government in action.

Posted by: Cassandra at August 26, 2005 01:26 PM

Your thoughts on this issue are correct. Each branch of government is supposed to stick to it's bailiwick. Encroachment on another's territory will (and has) cause problems. If I am trying to perform my job, but also that of a colleague, then I am usurping their position, even if I feel that they are incompetent. This is usurpation, plain and simple.

I was more interested in the story you told as an aside. I believe that the world was better off when public servants took responsibility for events that occurred in their domain. Now the default position is to lay claim to authority, and only take responsibility when indicted. Of course, in order to take the fall, one must have a sense of honor. This commodity is in short supply among our public servants, except for the military, and we are much poorer for it.

Posted by: Chris Hunt [TypeKey Profile Page] at August 26, 2005 05:31 PM

Interesting that you post this.
After trying to make a post for 5 hours (there`s a hurricane right outside my door) I finally got it up.
It`s one of those On This Day things and 2 of the topics are examples of how the various Branches are supposed to work.

The first is the case of the Amistad of which most people are familiar.
Slave trading in the U.S. had been illegal since (I believe) 1819 and (on paper) punishable by death.
The case could have gone to the Spaniards had Political Correctness been in vogue at that time but the Law won out.

Also your right to vote was a long struggle, but when all the I's were dotted and the T's crossed the Law was on your side. (Darned the bad luck)
I`ll slink away now...

Posted by: Joatmoaf at August 26, 2005 08:46 PM

You'd better RUN, joat. Even the fact that it's your *birthday* won't save you, big guy...

Posted by: Cassandra at August 26, 2005 10:35 PM

The problem with "living document" judicialism is that it offers no protection to either side. The reason that "living document" adherents are upset now about nonliberal judiciary picks isn't that they believe that Roberts et al. might be strict constuctionists... it is because they believe that they aren't.

Posted by: DaveP. at August 27, 2005 02:48 PM


Excellent essay. I've added it to my post on a related topic.

Posted by: No Oil for Pacifists at August 30, 2005 12:21 AM

Thanks :) I read your essay - very comprehensive - I'd read almost all of the linked articles, but you did a really nice job of tying everything together and it was great to see it all in one place and summed up coherently. Most people missed the boat on Hedgepeth.

Posted by: Cassandra at August 30, 2005 10:36 AM

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