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You are here: Home / Open Threads / Disorder In the Court

Disorder In the Court

by John Cole|  July 3, 20058:29 am| 6 Comments

This post is in: Open Threads

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Sometimes you can tell a pretty good story by just snipping a couple quotes together and letting them speak for themselves. This is one of those occasions.

Stephen Carter on over politicization of the court:

On issues from abortion to affirmative action to criminal procedure, it has often been Justice O’Connor’s unpredictable vote that determines which bloc prevails. So the right will naturally see its chance to move the court further toward its agenda; and the left will battle to retain what pieces of its own agenda it can, a sort of holding action against the day when the Democrats again rule the White House and the Senate.

This path, so predictable, so frequently trod in recent decades, is carrying the Supreme Court, and the ideal of judicial review, toward disaster. There has been much talk lately of how the cruel posturing of politicians and commentators critical of various decisions hurts the reputation of the courts. And there is something to this notion. But the overwrought attacks by some critics do less harm to the notion of an independent judiciary than does the way activists gird themselves for battle each time a vacancy occurs, as if it is the obligation of the political branches to guarantee outcomes their supporters prefer.

We all claim to believe in judicial independence, but our definition of independence too often turns out to mean deciding cases according to our druthers. A court that rules in our favor displays integrity and independence. A court that rules against us shows its ideology and partisanship. Need evidence? Listen to anyone on the right discuss classroom prayer or abortion. Listen to anyone on the left discuss Bush v. Gore.

Thomas B. Edsall and Dana Milbank:

Gray, in an interview, described a battle plan over two years in the making. The Federalist Society will provide research in support of the nominee. A group called Progress for America, which backed the reelection of Bush in 2004, will spend as much as $18 million on radio and television backing Bush’s nominee; and the recently created Judicial Confirmation Network, run by a former Bush campaign coalitions director, is setting up a grass-roots network in the states of six key senators.

“We have been preparing for this for 2 1/2 years,” Gray said.

NOW President Kim Gandy:

Today Associate Justice Sandra Day O’Connor announced her resignation from the United States Supreme Court.

This is a state of emergency for women’s rights. Sandra Day O’Connor broke down barriers for women as the first female Supreme Court justice

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6Comments

  1. 1.

    Hokie

    July 3, 2005 at 8:49 am

    Actually, I think Bush v. Gore is a perfect example of a results-oriented decision, and it’s not just because I disagree with it. It’s because you had two self-proclaimed “originalists” agreeing to apply the Fourteenth Amendment to voting rights, which would have been considered a “political,” not a “civil” right, and initially the Fourteenth was only intended to be applied to civil rights. It was the Warren Court, that incarnation of SCOTUS originalists claim to despise, that began applying the Fourteenth to voting. This, more than anything, indicates to me that the result was just a justification of an outcome rather than anything stemming from the law.

    Though Carter’s broader point remains. People want the Court to rule the way they wanted to, which is too bad. The Court will never, and has never, been free of politics; after all, Marbury v. Madison is in my view one of the most politically-charged decisions it has ever issued. But ideology can be part of interpretating the law. The problem is that now it appears it’s going to trump any other consideration. There was a good post on that over at TPMCafe in the context of Planned Parenthood v. Casey…here it is.

  2. 2.

    p.lukasiak

    July 3, 2005 at 12:35 pm

    If hokie is referring to the same TPM post I found so impressive, we need more than just a link.

    Basically, the real problem with the forthcoming battle isn’t about abortion rights, or gay rights, or school prayer. Its about the entire culture of jurisprudence being completely turned upside down.

    For over 200 years, court decisions have relied on the assumption of the validity of precedental decisions. “Overturning” previous Supreme Court decisions was something that very, very, rarely happened. The expectation was that a “good” judge is one that relied on precedent, rather than their own ideological biases, in deterimining what the law and the Constitution means.

    What the right wing wants to do is install judges who have absolutely no respect for precedent. If they disagree with a previous court decision, they feel perfectly comfortable overturning it.

    That way lies insanity — our laws and rights should not be subject to the whim of ideologically driven Court majorities. Why should lower courts continue to respect Supreme Court precedents they don’t like if there is a majority on the court that has no respect for precedent it doesn’t like?

  3. 3.

    Hokie

    July 3, 2005 at 6:52 pm

    The irony, of course, is that it’s the right-wingers that will go on and on about how it’s them that want to rid the scourge of law at the whim of an ideologically driven SCOTUS majority as a justification for installing jurists with their faux-originalism.

  4. 4.

    Mike

    July 3, 2005 at 11:18 pm

    “For over 200 years, court decisions have relied on the assumption of the validity of precedental decisions. “Overturning” previous Supreme Court decisions was something that very, very, rarely happened. The expectation was that a “good” judge is one that relied on precedent, rather than their own ideological biases, in deterimining what the law and the Constitution means.”

    So they are never allowed to go back and review a ridiculous decision?
    That’s pretty stupid.

  5. 5.

    p.lukasiak

    July 4, 2005 at 4:19 am

    I wrote:

    “Overturning” previous Supreme Court decisions was something that very, very, rarely happened.

    Mike responds:

    So they are never allowed to go back and review a ridiculous decision?
    That’s pretty stupid.

    speaking of “pretty stupid”….

    **************************************

    But, as with most right wingers, Mike misses the point. The doctrine of “separate but equal” was only overturned when nearly six decades of experience demonstrated that you could not achieve “equality under the law” with segregated public facilities. The theory behind Plessy v. Ferguson (not the legal argument) proved to be false.

    Nor was there a decades long effort by partisan ideologues to get a slim majority of Supreme Court Justices on the bench who supported their views. Brown v Board of Ed was decided unanimously.

    What the wingnuts are trying to achieve is going to create havoc with the legal review process, because it will render the concept of “settled law” moot, and turn the courts into a political football field where “the law” is only what a 5-4 majority of the Supreme Court wants it to mean, and it will change each time the membership of the Court changes.

  6. 6.

    ppgaz

    July 4, 2005 at 12:38 pm

    I agree, Mike. We should employ originalism to go back to Article ?&? and restore full citizenship and all its protections to the unborn. Taking those rights away from zygotes, as the Zygote Clause clear calls for, was a very stupid decision. The judicial activists’ insane notion of citizenship conferred at birth is a black mark on the dark history of American jurisprudence.

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