Wednesday, April 10, 2019
What is Judicial Courage?
Out anti-democratic system helps explain this better, I think.
80% of 'people' oppose Citizens United.
Well, about 10%, say, of them are prevented from voting from various suppression methods (felon disenfranchisement, regular irrational purges, ID requirements).
Aggressive gerrymandering essentially eliminates another 10% let's say (conservative estimate). Now we're down to 60%...We've got other countermajoritarian stuff going on here (Senate, filibuster, Amendment process)...Increased polarization and gerrymandering means that increasingly only primaries where the hard core extremists turn out disproportionately win out... And 20% of hard core conservatives love Citizen's United if and probably only because it serves their only real political principle: to win. So, we get a system where the 20% actually dictate policy.
Do you have any specific examples of cases where Justice O'Connor demonstrated courage (as you define it)?
The question makes sense since the test is "even when the elite legal reference groups that matter most to that judge will strongly condemn that decision" but even various opinions that we might think is "courageous" here (let's say a few regarding abortion, including her lesser known Bray dissent) are probably being criticized most strongly by those she might not care about. Strong ideological conservatives that favored Scalia wasn't her concern.
The Court's decision in Citizens United (5-4) permitted wealthy conservatives to contribute and assist in the election of GOP candidates for political office in various ways. The Trump tax bill of 2017 afforded significant tax reductions to the wealthy as well as to corporations. In conjunction, the Court's decision and the tax bill permit the wealthy to in effect politically "tithe" campaigns of GOP candidates for political office from their tax savings annually, demonstrating their "faith" in retaining their benefits under the 2017 tax bill. Consider the financial leverage provided to the GOP by such a small group, assuring to them the benefits of income inequality. The Federalist Society must be proud of its successes displaying their libertarianism.
The treatment of Justice Black post-Brown was part of the GOP Southern Strategy that makes up much of the conservatives in the GOP, reinvigorated by Trump in 2016 and continuing. And the Federalist Society in its formation attacked primarily the judicial activism of the Warren Court, the foundational decision of which was Brown. Connect the dots?
Justice O'Connor received snark from Justice Scalia for one of her onions. But I don't know if her opinion was courageous.
The fight over the legacy of Brown continues:
In addition to "courage", though, Justice O'Connor was great for another reason. She assembled majorities. Casey is a great example of this-- her undue burden standard saved Roe and went from a single justice concurrence to a rule of law.
The job of a SCOTUS justice is to count to 5. Really. Except in very rare circumstances (e.g., Holmes and Brandeis on free speech), issuing lone dissents is not good job performance. The point is to work with your colleagues, because a single Supreme Court vote is worth nothing; only a group of 5 gets you somewhere.
Her vote in McConnell, working with Stevens to craft a majority to uphold most of the campaign finance law, was also notable. Alito shows the importance of her seat.
I appreciate justices like her, even if some are scornful at her balancing. There is a role for various types of justices, including "balancing" justices with "undue burden" and "endorsement" tests that the Scalias of the world sneer at. O'Connor also had some good dissents. And, then there are a few opinions that burned her.
She at times worked with Breyer. And, he gets similar scorn at times.
I will ask this question, how important were organizations like the Federalist Society when O'Connor was in her formative years the law and judgeship?
O'Connor served as an elected official in her state, probably before the Federalist Society was established. She faced gender difficulties in the ability to practice law. Renquist, a one time admirer o O'Connor romantically was perhaps more immersed in the movement that established the Federalist Society. Maybe that's why she rejected him. (Recall his pre-SCOTUS days blocking minorities from voting in his home state.)
Linda Greenhouse has a sobering column at the NYTimes today on recent SCOTUS decisions that ties into this Blog's book Symposium. "Climate change" in the Court?
The Federalist Society began in 1982 but their influence grew more over time.
I question how much something like that really influenced O'Connor, thus my comment questioning how "courageous" she was, though she still surely cared about conservatives respecting her generally speaking. But, take Lawrence v. Texas. Barry Goldwater supported gay rights. And, Ted Olson (another big conservative voice) fought for marriage equality.
These days, many federal judges have much more concern about the Federalist Society, in part since they helped get them their jobs. As Shag references, O'Connor also has a complex background that makes her somewhat of a special case.
I doubt someone like O'Connor could get pass the 'vetting' process of organizations like the Federalist Society these days. Any indication of independence will get you labeled a dangerous 'RINO' and you're out, now that the GOP fringe=the base=the mainstream...
As far as I recall, the most opposition to her nomination at the time came from the right, particularly since as a legislator she supported some liberalization of abortion laws. Alito is more the speed of the FS these days.
Harriet Miers was opposed as unqualified but one wonders how her critics would have felt if they were more sure of her ideological priors.
While the Federalist Society was established in 1982, it movement of conservatives/libertarians started in the mid 1970s, about the same time as the originalism movement that came to fruition in the early 1980s under its hero Ed Meese. Was there cross-breeding? Were these two movements concerned with the civil rights movement post-Brown culminating with the mid 1960s Civil Rights Acts? Connect the dots? There was no competing coordinated group on the liberal/progressive side until more recently with ACS.Post a Comment
For some reason this brings to mind Will Rogers' "I am not a member of an organized political party. I'm a Democrat."