I've declined to do much blogging on political topics of late, content to leave the task to others more capable and knowledgeable than myself in that area. However, shock, horror, disbelief, and outrage are magnificent motivators to write and have provided fuel for my flame.
Were my angst and discontent over the recent Supreme Court Obamacare ruling a mere matter of technical disagreement on the legal specifics of the case, I would respectfully -- but vehemently -- object to the opinion of Chief Justice John Roberts, siding with the four dissenters. However, the written opinion itself raised questions about whether Roberts' conclusion was purely wrought in the fires of Constitutional jurisprudence, and subsequent information is confirming suspicions that it was not. Instead it seems as if the opinion was the product of the Chief Justice weighing a variety of considerations and interests, many of which have nothing to do with his duties as a faithful interpreter of the text and of the relevant precedents. It's not only that Roberts has erred in his decision, going beyond the principle of generous interpretation and effectively legislating from the bench -- which would be bad enough -- but that his motivations for doing so seem to be concerns which should be, in principle, bracketed out to begin with and never taken into consideration.
Considerations such as the role of Chief Justice as a "steward" of the court, or of "the court's reputation", or making compromises toward some imaginary "long view", or declining to "obstruct" Congress and the President on an important piece of legislation. If faithful, accurate interpretation and application of the Constitution causes the "reputation of the court" to suffer, then please suffer dutifully and with honor. If reading the caterwauling of the elite media class causes you to believe the "reputation of the court" is actually at stake when it isn't, then please put down the New York Times Op-ed page immediately. If it makes you uncomfortable to strike down the cornerstone of a President's political and legislative agenda, then please decline to take the oath of your office which requires you to -- at times -- do precisely that.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Monday, July 2, 2012
Saturday, March 26, 2011
Westboro Baptist and The First Amendment
If you've been living under a rock Westboro Baptist is the 'church' that goes around protesting military funerals proclaiming that American soldiers die because God is punishing America, primarily for its tolerance of homosexuality. I always thought soldiers died because their job involves dodging enemy bullets and bombs, but I could be mistaken. According to the Phelps gang, if America were to become more strongly anti-homosexual soldiers would stop dying in the line of duty or at least would do so at a lower rate. There's no real way to test this hypothesis, of course, but let's just say it seems quite dubious on its face.
As despicable as the beliefs of Westboro Baptists are, lots of people believe many strange things and often the best response is to ignore the crazies. However, in this case, much worse than what they believe is the way they go about attempting to spread their message--namely by verbally abusing the families of fallen heroes.
If you haven't had a chance to do so, I would strongly recommend reading Samuel Alito's dissent in the recent Westboro Baptist First Amendment case (Snyder v. Phelps). Alito was the lone dissenter in an 8-1 Supreme Court decision that ruled in favor of Westboro Baptist's right to verbally abuse the family of Matthew Snyder--a soldier who died serving in Iraq--at the site of his funeral. The issue, by the way, wasn't whether the Phelps gang should be arrested and jailed, but whether Snyder's family, after receiving the verbal abuse, could sue Westboro Baptist for the injurious comments they had made and seek restitution. Though I agree with David Bentley Hart's observation that "in the 1780s, any rabble behaving as the Westboro people do would have been arrested, incarcerated, and fined and no one would have thought this an abridgement of their chartered rights" [emphasis added].
I think a lot of people conceive of the 'Freedom of Speech' as being something that is almost absolute. We may be vaguely aware of types of speech that aren't protected--slander, libel, yelling "fire!" in a crowded theater--but aside from that we tend to think that anyone can say anything anywhere, and the First Amendment protects that right. And while the precedents in the courts may affirm this very broad interpretation, that doesn't mean it's the best one, or that it was always interpreted this way. In fact Hadley Arkes argues convincingly against the broad interpretation, and notes that its origin is only about 40 years old.
Switching gears, I'd like to end with a moral footnote, putting aside the issue of legality for a moment. Not that any civilized person needs to be convinced that Westboro's actions are revolting, but I thought that Christopher Benson had an insightful comment (which appeared in a piece on a different subject) on the precise reason why their actions are so vile and repugnant:
No living person has undergone the descent of Christ into hell, and therefore we must never count who is there. What makes the hell-counters of Westboro Baptist Church so odious is that they feign the Cross’ knowledge without undergoing the Cross’ torture.
Monday, May 17, 2010
Obama, The Supreme Court and 'Activism'
Today's New Yorker has an asinine article by Jeffrey Toobin about judicial activism, in which Toobin accuses today's conservative, Robert's court of being guilty of "judicial activism." He asserts that while conservative justices claim that they are in favor of judicial restraint, their actions say otherwise, and proceeds to list some decisions where the conservative court "actively" shot down unconstitutional laws. To what authority does he turn to in order to define "judicial activism"? Barack Obama, the 'law professor' of course.
Never mind consulting any actual legal experts or, say, the conservative justices on the Supreme Court (i.e. true legal experts) for their definition. No, he blithely accepts Obama's definition and uses that to frame the entire debate throughout the article, as though that definition were valid. Despite the fact that Obama's definition is simply not what judicial activism is. It's not what it is, neither is it even how it has been historically understood. Obama's definition is a blatant example of outright, intentional, deceptive manipulation of language in order to render legitimate criticisms of the actual judicial activism of the left null by equivocating it with what is actually judicial restraint on the right.
Judicial activism was probably first defined by it's earliest proponent Roscoe Pound in 1908, who clearly lays out what judicial activism is. That is: the act of interpreting the law in a way that goes beyond the written letter of the law in favor of what you believe to be the "spirit" or "intent" of the law, in order to achieve some desired social result. And that's how it has been understood since, at least until recent linguistic acrobats on the left have attempted to turn it on it's head. Judicial activism is not stepping beyond the will or intent of Congress, as Obama defines it. Indeed, the entire purpose of a judiciary, as a co-equal branch of government, is to act as a check on the power of elected government officials i.e. Congress and the president! Yet Obama claims the exact opposite; that the judiciary's role is to submit to the will of Congress, not to determine whether or not the actions of Congress are Constitutional or not. It looks like someone doesn't have the most rudimentary understanding of (or perhaps respect for) the fundamental workings of our system of government. Surprise, surprise.
The trick of Obama and others on the left, being masters of both language and manipulation, is to play on the common man's fallible, but reasonable, sensibilities. In this case treating the idiom of "judicial activism" as two individual words. When you do that then virtually anything that the judiciary does actively, especially actively declaring acts of Congress unconstitutional, qualifies as "judicial activism." Thomas Sowell comments on this phenomenon is his book Intellectuals and Society (prior to Obama's recent comments), and reveals it for the cynical ploy that it is:
Toobin goes on in the article to say that "activism" and "restraint" are just convenient words people use whenever it suits their interests. He does this by simply defining "activism" and "restraint" along the lines of action versus inaction, which is clearly misguided. It is similar to what people who take the root of the word "conservative" (conserve) do when they determine that conservatives aren't being conservatives whenever they advocate some change, for change is the opposite of conservation. While this exhibits great mastery of the OED, it betrays either complete ignorance, or cynical manipulation, of the nuances of language. Specifically with regard to what the word "conservative" means in a modern political context. Similarly, "judicial activism" and "judicial restraint" as concepts are not merely the sum of the definitions of those terms.
Having handily disposed of misconceptions about "judicial activism", Sowell goes on to illuminate what it actually is:
This is what judicial activism is, and this is what it has always been understood to be. So either our dear leader, the distinguished law professor, is unaware of this fact (which is hard to imagine), or he willfully and cynically tries to maneuver around it with "verbal virtuosity", the most potent tool of the statist. In either case it spells bad news for us, though it's much worse if it's the latter (which it most likely is). Because in that case there's no chance that this is an isolated misunderstanding of the workings of our government, rather it reveals a conscious, systematic attempt to subvert the foundations that our society rests upon.
A few weeks ago, on Air Force One, Obama, a former law professor, gave a useful definition of the term, saying that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” This is, indeed, what the Roberts Court is doing.
Never mind consulting any actual legal experts or, say, the conservative justices on the Supreme Court (i.e. true legal experts) for their definition. No, he blithely accepts Obama's definition and uses that to frame the entire debate throughout the article, as though that definition were valid. Despite the fact that Obama's definition is simply not what judicial activism is. It's not what it is, neither is it even how it has been historically understood. Obama's definition is a blatant example of outright, intentional, deceptive manipulation of language in order to render legitimate criticisms of the actual judicial activism of the left null by equivocating it with what is actually judicial restraint on the right.
Judicial activism was probably first defined by it's earliest proponent Roscoe Pound in 1908, who clearly lays out what judicial activism is. That is: the act of interpreting the law in a way that goes beyond the written letter of the law in favor of what you believe to be the "spirit" or "intent" of the law, in order to achieve some desired social result. And that's how it has been understood since, at least until recent linguistic acrobats on the left have attempted to turn it on it's head. Judicial activism is not stepping beyond the will or intent of Congress, as Obama defines it. Indeed, the entire purpose of a judiciary, as a co-equal branch of government, is to act as a check on the power of elected government officials i.e. Congress and the president! Yet Obama claims the exact opposite; that the judiciary's role is to submit to the will of Congress, not to determine whether or not the actions of Congress are Constitutional or not. It looks like someone doesn't have the most rudimentary understanding of (or perhaps respect for) the fundamental workings of our system of government. Surprise, surprise.
The trick of Obama and others on the left, being masters of both language and manipulation, is to play on the common man's fallible, but reasonable, sensibilities. In this case treating the idiom of "judicial activism" as two individual words. When you do that then virtually anything that the judiciary does actively, especially actively declaring acts of Congress unconstitutional, qualifies as "judicial activism." Thomas Sowell comments on this phenomenon is his book Intellectuals and Society (prior to Obama's recent comments), and reveals it for the cynical ploy that it is:
"Judicial activism" is an idiomatic expression whose meaning cannot be determined by the separate meanings of its words, any more than the meaning of the exclamation "Hot dog!" can be determined by referring to a separate definition of "hot" and "dog." Nevertheless, in recent times, some have attempted to redefine judicial activism by how active a judge has been in declaring laws or government actions unconstitutional. However, the Constitution itself is a limitation on the powers of Congress, as well as on the powers of the other branches of government. Judges have been considered duty-bound to invalidate legislation that goes counter to the Constitution, ever since the landmark case of Marbury v. Madison in 1803, so how often they perform that duty is not solely in their hands, but depends also on how often others do things that exceed the powers granted them by the Constitution.
Toobin goes on in the article to say that "activism" and "restraint" are just convenient words people use whenever it suits their interests. He does this by simply defining "activism" and "restraint" along the lines of action versus inaction, which is clearly misguided. It is similar to what people who take the root of the word "conservative" (conserve) do when they determine that conservatives aren't being conservatives whenever they advocate some change, for change is the opposite of conservation. While this exhibits great mastery of the OED, it betrays either complete ignorance, or cynical manipulation, of the nuances of language. Specifically with regard to what the word "conservative" means in a modern political context. Similarly, "judicial activism" and "judicial restraint" as concepts are not merely the sum of the definitions of those terms.
Having handily disposed of misconceptions about "judicial activism", Sowell goes on to illuminate what it actually is:
The real issue regarding judicial activism is over whether the basis of a judge's decisions is the law created by others, including the Constitution, or whether judges base their decisions on their own particular conception of "the needs of the times" or of "social justice" or of other considerations beyond the written law or legal precedents.
This is what judicial activism is, and this is what it has always been understood to be. So either our dear leader, the distinguished law professor, is unaware of this fact (which is hard to imagine), or he willfully and cynically tries to maneuver around it with "verbal virtuosity", the most potent tool of the statist. In either case it spells bad news for us, though it's much worse if it's the latter (which it most likely is). Because in that case there's no chance that this is an isolated misunderstanding of the workings of our government, rather it reveals a conscious, systematic attempt to subvert the foundations that our society rests upon.
Kagan: Obama's Harriet Miers?
I just finished reading an article titled "Kagan Doesn't Deserve it" by Paul Campos, where he bashes Kagan's nomination based on her complete lack of any real legal experience, as well as her publishing virtually nothing scholarly that would reveal what her position is on anything, or what type of justice she might be. He draws a comparison of her nomination to that of George W. Bush's nomination of Harriet Miers, claiming that, in the relevant factors, Kagan is just like Miers.
The most central, relevant similarities between Kagan and Miers is that neither have ever been a judge, neither has much legal experience to speak of, and neither has published hardly anything scholarly that would allow you to determine what kind of judge that they might end up being. The similarities might end there, but when it comes to the relevant issues when selecting a Supreme Court Justice, those are some monstrous similarities with extreme significance.
In what relevant ways do they differ? The most important difference has nothing to do with the nominees themselves, but with the president that nominated them, and their respective parties. That is, it was Bush's own party, the Republicans, that derailed the Miers nomination. Conservatives understand the potential dangers of nominating someone with no judicial, or public legal record of opinion. And Conservatives are inherently distrustful of leaders (even one of their own), and thus saw no need to trust Bush's judgment on the matter.
The Democratic party, on the other hand is, by definition, more trustful of leaders in general, and especially one of their own. And even more especially the anointed one Barry Obama. The Democrats simply do not have the gall to insinuate that Obama would ever make anything less than a perfect decision. Neither do they understand the potential problems associated with electing someone with such a complete lack of a record, and partly for good reason. That is, considering that so-called 'unknowns' most often turn out to be quite liberal in their decisions, progressives figure that they have little to fear. While the opposite was true for conservatives; they had every reason to fear that Miers 'unknown' status would translate into her becoming a liberal justice.
So the different repsonses to two nominees who have similar qualifications actually makes a lot of sense given the differences between the parties. I guess the point is that a) the left should be more distrustful of their leaders and b) everyone should be more wary about putting a total unknown in such a powerful position.
Grownups understand that a Supreme Court justice’s politics are by necessity a crucial factor in how he or she goes about interpreting the law, since difficult questions of legal interpretation are inherently political. Certainly conservatives understood this when they opposed the nomination of Harriet Miers: Their primary objection to her had nothing to do with whether she was “qualified” for the position, but rather with the fact that, just like Kagan, she had practically no public record. The argument for Miers came down to the claim that conservatives should simply trust George W. Bush to make these kinds of decisions. This is exactly the same argument that political progressives are now being asked to accept in regard to Kagan: that they should trust Barack Obama.
The most central, relevant similarities between Kagan and Miers is that neither have ever been a judge, neither has much legal experience to speak of, and neither has published hardly anything scholarly that would allow you to determine what kind of judge that they might end up being. The similarities might end there, but when it comes to the relevant issues when selecting a Supreme Court Justice, those are some monstrous similarities with extreme significance.
In what relevant ways do they differ? The most important difference has nothing to do with the nominees themselves, but with the president that nominated them, and their respective parties. That is, it was Bush's own party, the Republicans, that derailed the Miers nomination. Conservatives understand the potential dangers of nominating someone with no judicial, or public legal record of opinion. And Conservatives are inherently distrustful of leaders (even one of their own), and thus saw no need to trust Bush's judgment on the matter.
The Democratic party, on the other hand is, by definition, more trustful of leaders in general, and especially one of their own. And even more especially the anointed one Barry Obama. The Democrats simply do not have the gall to insinuate that Obama would ever make anything less than a perfect decision. Neither do they understand the potential problems associated with electing someone with such a complete lack of a record, and partly for good reason. That is, considering that so-called 'unknowns' most often turn out to be quite liberal in their decisions, progressives figure that they have little to fear. While the opposite was true for conservatives; they had every reason to fear that Miers 'unknown' status would translate into her becoming a liberal justice.
So the different repsonses to two nominees who have similar qualifications actually makes a lot of sense given the differences between the parties. I guess the point is that a) the left should be more distrustful of their leaders and b) everyone should be more wary about putting a total unknown in such a powerful position.
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