That ranting about the dangers of appointing [insert opposing ideology here] judges to the Supreme Court is something limited to conservatives. My initial reaction upon reading such editorials is to think that the paper tends to laud and defend the judgement of the court when it agrees with their decisions, and simply asserts that the court gets it wrong whenever it disagrees.
I think that shows a brash lack of humility when talking about people who, frankly, know much more about Constitutional Law than the NYT's editorial board.
And it reminds me that I need to have that same humility when talking about experts on a subject that I happen to disagree with. Because a brash lack of humility and being rather opinionated often go hand in hand.
So perhaps a court that manages to upset people on both sides of the political spectrum is actually one that gets it mostly right.
Thursday, July 03, 2008
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3 comments:
You mean Anthony Kennedy's pissing off people on both sides, right? Because the other eight vote their party line.
I guess my problem comes when the justices use obviously specious constitutional reasoning to make their decision. This latest session, I have to agree with or at least respect all of the major decisions (campaign finance, guns, punitive damages, detainees). But some of the dissents, especially in Heller (the gun case) and Boumediene (the detainee case - incidentally, "Boumediene" sounds more like a chemical than a person), involved no constitutional reasoning at all. Scalia's in Boumediene was especially egregious - boiling down to, "You fools! You've doomed us all!" Ridiculous.
It's too much to ask, I suppose, to see partisan politics taken out of the judiciary... but it'd be nice.
It's worth noting that most cases get decided by large majorities of the justices, 9-0, 8-1, 7-2.
But the media only reports the controversial cases, the 5-4 cases because they're the most contentious and dramatic.
So, to some extent, the notion of the partisanship of the judiciary is overblown.
I agree with Kenny--and you. In my experience, cries of "judicial activism," its "right-wing" equivalent, and partisanship are far too often naked accusations used by people who simply disagree with the result of the opinion.
On the state level, I've seen several recent instances where local political figures blasted judicial decisions as "activist" when, ironically, the decisions were rooted in the philosophy of judicial restraint.
There are instances of partisan decisionmaking, but like Kenny, I believe reports of such are overblown.
Far too often, the media and commentators try to fit SCOTUS decisions into their "right-wing vs. activist" template, and most of the time, the template just doesn't fit.
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