Balkinization  

Monday, July 25, 2005

A "Sick" Political-Legal System

Brian Tamanaha

Let's take a momentary break from John Roberts tea leaf reading prognosticating (never have I read so much, but learned so little about a person), and instead contemplate the broader situation.

How could we have developed a political-legal system in which a single man has so much apparent power to determine the fundamental principles and legal rules that will govern our individual, social, political, and economic lives?

What political or legal theory could justify or legitimate vesting so much power in a single judge in our liberal democracy of 300 million people?

Why are we collectively (liberals and conservatives, including President Bush) in the helpless position of hoping that the views of this one person won't be too contrary or harmful to our understandings of the law?

Skip the reasons for judicial review and explanations about the contemporary 5-4 alignment, and never mind saying that judges don't decide everything--yes, yes, yes--we know all that. Those points, correct as they may be, distract us from seeing the situation as it is: a single judge, a single man, will have immense power over us all (as did the woman he will be replacing).

Although is impossible to tell whether our political-legal system is suffering from a really bad case of the flu that we cannot seem to shake, or from terminal cancer, it seems clear that the system is sick. If you think this is an exaggeration, recall that five years ago five judges picked the President. I have made an attempt to diagnose some of the factors that have led to this condition, but it is beyond my ken. What I do know is that our political-legal system is in a terrible state.

Now, back to reading those Roberts tea leaves...

Comments:

rtsp://video.c-span.org/archive/sc/sc042105_justices.rm

Justice Scalia answers that question at 00:56:18 - 00:58:30. (See also Scalia's speech at the Woodrow Wilson Center).

I think - and most originalists think - that this is the inevitable consequence of politicising the court system. When the courts get into the business of passing on the wisdom of social policy, when the courts start inventing rights which do not exist (Griswold et al) in the Constitution, when the courts start placing back into the political arena rights which are constitutionally protected (Kelo), or worse yet, deleting those rights entirely (Craig), when Justices take it upon themselves to arrogate the Senate's authority to ratify or reject a treaty (Justice Ginsberg in the Michigan cases), when the Justices attempt to import foreign law into American law, when the courts start making political judgements, what do you think is going to happen? "No taxation without representation" was the birth cry of this nation, and so a system was created whereby there wold be not only no taxation laid, but no laws made without representation; the Constitution would be passed by the people, and all subsequent laws and amendments would be passed by the people's representatives. That's the nature of the system. So if the unelected branch starts to invade the sphere of the democratic branches, it should be obvious that the people - and the other branches - will attempt to assert their supremacy over the court. And this is an absolutely terrible idea, because it will ultimately destroy the idea of the court as a non-political branch, and it will destroy the distinction between law and politics. I promise you that if the Supreme Court becomes packed with nine Janice Rogers Browns, every liberal will be a strict constructionist - but by then, it will be too late, because the genie will be out of the bottle.

If the Justices can rule based on their own views, rather than on the original meaning of the Constituion, then whom is on the Court takes on a vastly inflated level of importance. Of course, it always matters who is on the court, because interpretation is not construction, and I doubt that Scalia and Breyer would necessarily rule the same way on every case, even if Breyer underwent a conversion on the road to Damascus, just as Scalia and Thomas don't always come out the same way. But that tendency becomes exacerbated when things that should be taken for granted are being questioned. If the court is not restrained by the text, then this is the patently obvious result.
 

The Supreme Court's job is inherently political, and has always been. They have the final word on what the Constitution means; there's no way to do that without being political.

I don't think there's anything particularly "sick" about that. We gotta have some people ruling over others, unless we want to try anarchy. Some of those people will inevitably have quite a bit of power. John Roberts is at least no less trustworthy than George Bush, and probably rather more so.
 

Well, but Tom, I think the point of the original post is that John Roberts will have power much longer, and with much less direct popular input, than George Bush will.

Contrary to Simon's parade of judicial usurpations and mistakes, I think it pretty much all comes down to Roe v. Wade. If the S.C. got out of the abortion rights business, the political stakes would be lowered 90%. (I mean, are there really large numbers of people at faculty parties who feel that they have a personal stake in medical marijuana?) I think that the Court clearly misjudged the political future 30 years ago, and expected Roe to gain acceptance in the same way that Brown and Griswold had. But they were wrong.
 

Marbury v. Madison is the answer to your question. Do you wish for a new Andrew Jackson (I believe it was during the Seminole wars) to say, "John Marshall made his ruling. Now let him enforce it"?
 

The 17th amendment. If no man should be the judge in his own case, it's equally true that no level of government should have the capacity to chose the judges in it's own cases. Prior to the 17th, the states had significant influence over the composition of the federal judiciary, limiting the capacity of the federal government to politicize the federal judiciary in it's own favor.

Now, with the composition of the judiciary entirely in the control of people the limits of whose power the judiciary regularly rules on, the judiciary is becoming progressively more political. NOT because it is impossible for a judiciary to be non-political, but because it is not in the perceived self interest of those selecting that judiciary that it be non-political.

The claim that it could not be otherwise is just an effort to defend as inevitable something everyone outside the political class understands to be an evil which ought to be abolished if at all possible.
 

I think that the political "sickness", to the extent that it exists in greater proportion now than it did say during the FDR years, is directly attributable not only to the fact that the federal (and to a lesser extent state) courts have obtained too much power and are out of whack to their co-equal role, but also to the fact that the left has imperialized the judiciary.

You don't think so? Listen to the wailing on the left any time that a member of the executive or legislative branch criticizes a federal court: HE'S TRYING TO DESTROY JUDICIAL INDEPENDENCE! CHECKS AND BALANCES!

The left has set apart the federal courts as an inviolate institution, one above criticism or legislative reform. The right, in response, has determined that the appropriate tactic is to then put enough people who they feel (rightly or wrongly) will return the court to its proper role on the court, on the courts.

It really has been a situation of cause and effect, but one that will get better in a generation or so. By then all of the conservative judges being placed on the bench will have had time to recede the court back to its intended role of interpreting the constitution and being a check on the power of the federal government - not being the final say on the social policy of the U.S.
 

Seconding Simon...

Once you release a constitutional court from the bonds of the texts with notions of a "growing" "living" and "breathing" Constitution, you give the judges a license to legislate from the bench. Once they cease to be largely subservient to the law, and become masters of it, then the mastery of the court becomes the key political struggle. While common law judges did just make things up as they went along, the written Constitution was meant as an antidote to that kind of arbitariness.

In other words, if you expect the rest of us to take "emanations of penumbras" as legal principles set in stone, then you should expect in return that we will glibly appoint conservatives to set off in search of our own penumbral emanations, thus reducing the Court to a purely political creature, rather than a legal beast that occasionally strays into politics.
 

Blame the liberals for dragging public "interest" litigation into the courts, and blame the Warren Court for welcoming them with open arms.
 

Brian,

I am a committed originalist and agree with Simon and the others here who suggest that the living constitution idea is part of the history that brought us to where we are.

For a more theoretical treatment of the deeper social and political issues at stake, you might want to take a look at Charles Taylor's elegant little monograph "The Ethics of Authenticity", which situates the aggrandizement of our judiciary in what Tocqueville warned against as a kind of "soft despotism" that might arise in a democracy that had become fat, happy, and fragmented. That's a quick and sloppy oversimplification, but Taylor's book is well worth the read.
 

I just added your blog to my book marks and will be checking back often

I have a business get money own start site. It's a membership site about business get money own start related stuff.

Come and check it out if you get time :-)
 

O2 Onlineshop
 

You have a very good site on business home improvement This is something I also have a large interest in and have set up a blog about business home improvement please visit and let me know what you think.
 

Bloggs are such a wonderful way to plublish ones thoughts. Thanks for letting me visit and leave a comment. penis enlargement reviews
 

Love the rump! Then click the link to visit ass.
 

.

Yahoo News - Oct. 13, 2005


Yahoo Japan steps up mobile content distribution (Reuters via Yahoo! News)
Yahoo Japan Corp. said on Thursday it had launched a mobile content distribution service, in which cellphone users can buy games, ring tones, news and other entertainment and information from 59 content providers.


Microsoft, Yahoo to link instant messages (USATODAY.com via Yahoo! News)
Microsoft and Yahoo will make their instant-messaging programs work together, a partnership that could give the companies more power to compete against market leader America Online. The companies expect the service to start by June 2006.


Yahoo to Bar Minor-Adult Sex Chat Rooms (Washington Post)
NEW YORK -- Yahoo Inc. said Wednesday it will bar chat rooms that promote sex between minors and adults and restrict all chat rooms to users 18 and older.

Today's News From & About Yahoo


Delivered by Infopage.cc: 30,000 daily updated Information Pages about all kind of subjects


Have a nice day,

jeepee
 

Great Blog! Ilike it.I have Free dating site for singlesTake a look if you have a minute. Thanks and have a good one!
 

Bloggs are such a wonderful way to plublish ones thoughts. Thanks for letting me visit and leave a comment. enlargement free information penis
 

Quick And Easy Holiday Planning. powerful There's a lot to think about when planning a holiday and no matter how hard you try, you almost always forget something. The solution...
powerful
 

Just read your blog and found it to cover the subject of home business very well. i will be sure to book mark it. Perhaps you could visit my home business website at home business
 

Cool blog you have. I have a mlm home business related site. Check it out if you get a chance. The URL is mlm home business
 

what up u crazy little weirdo? cut blog... congrats :)

where u from?? cuz if ur near me, u should check what me and my friends found ..lol :-)
yahoo dating service
 

Hi, this is a good blog on self improvement links. How often do you post new articles so I can come back in time?
If you are interested I also have great content on self improvement links at self improvement links
Again thanks
 

what up kid? nice blog... kudos :)


are you from the US? cuz if so, check out what me and my friends found ..lol :-)
american single dating
 

Wow your site is great- ways to make money fast- if you're interested in making making a profit when you sleep please visit my site ways to make money fast
 

Great Blog! Ilike it.I have Totally Free dating site for singlesTake a look if you have a minute. Thanks and have a good one!
 

You have nice blog here! If you are interested, go see my uk web site traffic related site. It isnt anything special but you may still find something of interest.
 

Come and get the best full length porn movies online, only at Free Adult Movie Archive!

Check it out!
 

Hi, you have a great blog here! I'm definitely going to visit again! Please feel free to visit my blog too at http://rushprnews.iuplog.com, RushPRnews Daily Gazette.
My site is ** RushPRnews press release services, distribution and free web posting** . Cordially, Anne Laszlo-Howard
 

A valuable post on "A "Sick" Political-Legal System".And I would like to say that I'm living my dream of owning my own business and working from home earning equally or more than the regular jobs by using http://debtfreeliving.ownanewbusiness.com.

Thanks,
Peter- Working Moms make more
 

A
B
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
 

C
C
C
C

C
C
C
C
C
C
C
C
C
C
C
C
C
 

article that you created and you have, very nice, charming and perfect to be listened to and used as a reference of quality.
thank you for sharing a remarkable job, hopefully more successful and we wait for the next post
visit | Pengobatan Alami Infeksi Tulang
 

Best man describes himself by remarkable actions, not by persuasive words.
Agen Judi Online Terpercaya
 

Post a Comment

Older Posts
Newer Posts
Home