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Politics and Law

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from Kevin Williamson at National Review,  Merrick Garland’s ‘Moderation’

It should not matter — if the law were the law. If the law is whatever our black-robed secular clerics say it is, then it does matter what sort of political views justices hold. And if it matters what sort of political views justices hold, then the Supreme Court is not a court, but something else.

Conservatives should not accept an extreme left-wing judicial activist. They should not accept an extreme right-wing judicial activist, if there were such a thing. They should not accept a moderate judicial activist, for the same reason that they would not shoot themselves in the foot with a firearm of moderate caliber. Litmus tests may be in bad odor with our self-proclaimed sophisticates, but here one is very much in order: The law is the law is the law, and it isn’t anything else. Those who believe otherwise do not belong on the Supreme Court any more than moderate phrenologists belong on medical-school faculties or moderate foxes should be assigned guard duty at the henhouse.

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Supreme Bias

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Aside from the political controversy about replacing Scalia, the court reflects an intellectual bias rarely considered.

We consider bias in terms of race, religion or sex, but there is an intellectual bias when we consider different people with the same education background.  If we ask ten people about history and they all had the same professor are we really getting any  diversity of opinion.

The current Supreme Court has five Catholics and three Jews- no Protestants of any denomination.  Scalia had added one more Catholic.  This is a stunning lack of diversity in a country that is only 20% Catholic and less than 2% Jewish.

Not that affirmative action should apply to the courts; we should be more interested in their intellectual competence. Yet every justice went to either Harvard or Yale to study law with the exception of Ruth Ginsberg who went to Columbia.  There are wide differences of opinions  within the alumni of any of these schools, but there remains a different dynamic or culture to be considered from lawyers trained at one of our many fine state schools.

In a nation obsessed with diversity in so many areas it is worth noting how one of our most influential political institutions is so totally lacking in the important areas of religious and intellectual diversity

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Judicial Supervision of Democracy

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from George Will at National Review, A Jurist of Colossal Consequence:

Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”

Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?

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Nine Unelected Lawyers

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from the WSJ Justice Scalia Writes:

“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law. ”

“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

“Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

“Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

HKO

Interpreting law is challenging, especially laws written long ago when words had slightly different meanings social concerns and priorities were drastically different. But clearly the court has gone far beyond interpretation in many of its rulings.

The Congressional power to legislate has been muted by the fourth branch of government, the administrative state, the growing use of executive orders and judicial actiivism,  The progressive movement in American politics has largely been about weakening constitutional protections in the service of making government more efficient by concentrating multiple powers in a single branch.  That is a threat to liberty and the cause of some of the most oppressive governments of the 20th Century.  That this is done in the cause of social justice does not make the power any less threatening.

It is worth noting that the founders considered the Supreme Court the weakest of the three branches.

other quotes:

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

“I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”

“If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged.”

“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” 

“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

The point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

 

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Meaningless Laws

from Daniel Greenfield at Sultan Knish, A Tour of  Our Decadent Civilization

Excerpt:

The decadent civilization has a million laws which it applies selectively. Its universal laws, inherited from a vigorous civilization, are so mired in legalisms as to be meaningless. The laws do not mean what they say. Instead they must be interpreted by a specialized caste. Everyone is always in violation of some obscure laws. Life depends on a lawless dispensation from the law.

The crucial task of the law is interpretation that keeps everyone from constantly being punished. This task is accomplished by lawyers, lobbyists and the politicians who are constantly adding more laws to fix the interpretations in the old laws creating a complex mass of contradictory information.