The Threat of Revolutionary Justice

From, Gerard Baker at The Wall Street Journal, Kyle Rittenhouse and the Left’s Terrifying Assault on Due Process:

In the minds of the ranting radicals of the Squad or MSNBC, dimly repeated by the president, these so-called rights—presumption of innocence, due process, trial by jury, proof of guilt beyond a reasonable doubt, etc., are not the bedrock legal protections against overweening authority the Anglo-Saxon jurisprudence has deemed them to be. In the minds of the regnant left when they find the defendant unsympathetic, they are inconveniences, fetishized excrescences of judicial process that obstruct and subvert the larger and more important objective of social justice. In this increasingly popular account on the left, they are the armor with which the capitalist white supremacists protect their hegemony. As such they can be dismissed.

This is what the pernicious doctrines of the modern progressive identity left look like in practice. The “critical theory” they subscribe to says real justice cannot be delivered by a court, presided over by a judge whose outcome is determined by a dispassionate jury, since the entire structure is itself the product of racism, oppression and discrimination.

What they want is revolutionary justice. The legal system’s verdict will be supplanted by the people’s judgment so that someone like Mr. Rittenhouse will pay for his crime of defending himself and the property of others against the people’s paramilitary.

HKO

Threats to intimidate and undermine our legal institutions are no different from efforts to undermine our electoral institutions. Systemic racism and CRT and all of their iterations seek to undermine these critical institutions. Social justice is a poor substitute for real justice, and can easily become its opposite.

The Seduction of Judicial Moral Truth

From The Wall Street Journal, The Temptation of the ‘Common Good’ by David Rivkin and Andrew Grossman:

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

A letter to the editors expanded on this. From Keith Whittington, What Good is Common Good Constitutionalism?:

Regarding David Rivkin and Andrew Grossman’s “The Temptation of the ‘Common Good’” (op-ed, July 24): There is always a temptation to seek a shortcut around the hard work of politics and persuading our fellow citizens to embrace the principles and practices that we think are right. Theories of judicially enforced “living constitutionalism” have long sought precisely such a shortcut. Jurists like William Brennan argued that judges should impose the rule that they think best and hope that the people would eventually come around to accepting the rule, and the imposition, as just.

Unfortunately, on this dimension the common-good constitutionalists are not so different than the living constitutionalists of a half-century ago. They take their bearings from a different moral compass, and they promise results that will win plaudits from the right rather than the left. But they share the same basic impatience as the judicial activists of yore. Why wait until one can build popular majorities and win elections on your policy platform when unelected judges could give you the results now? Why should judges rely on broadly accepted principles of limited government when they could instead enforce polarizing but substantively rich principles of the public good? Why should judges limit themselves to democratically endorsed legal standards and sources when they could draw on the deep well of moral philosophy for insights into better governance?

Conservatives once saw the dangers of imposing moral values from the bench and appreciated the modest virtues of fighting for sometimes partial and transitory victories in the arena of democratic politics. The hope that legal elites will embrace the common-good constitutionalists’ favored moral truth seems like a fantasy—and not one we ought to want to pursue in a pluralistic democracy.

HKO

Is the support of judicial activism contingent on who occupies the bench? We may disagree on the issues but we are supposed to be united in the means.

Is It Time for Judicial Term Limits?

from David French in the weekend Review section of the WSJ, Why We Fight So Ferociously Over the Court:

What is to be done? There’s no easy answer, and we certainly can’t forsake judicial review. It is the necessary implication of placing “the judicial power of the United States” in the federal courts, and it is an indispensable check on majoritarian tyranny. But there are ways to lawfully decrease judicial power without removing necessary judicial restraints on the elected branches of government.

A simple and modest start would be to end the issuing of nationwide injunctions by federal district courts. District court judges are judicial masters of their districts, not temporary Supreme Court justices, issuing rulings binding on an entire, vast republic. It would be a small but important way to hand more power back to elected officials.

A tougher but more consequential reform would be term limits for Supreme Court justices. The most viable and interesting proposal comes from the advocacy group Fix the Court, which suggests that justices be nominated for 18 year terms, after which they’d be forced to take “senior status.” On senior status, they’d still possess the same office and compensation and could serve on lower courts, but they’d no longer be active on the Supreme Court.

Fix the Court’s proposal of 18-year terms would provide each president with two choices in each term, in their first and third years. It could halt the present trend of nominating younger judges in the hopes that they can serve for 30 years or more—terms in office longer than the reigns of many kings. And while it wouldn’t politicize the Supreme Court with outright judicial elections, it would measurably democratize the process and decrease the stakes of each nomination.

But we can’t forget a final necessary change: voluntary judicial restraint. As the nation mourns the loss of Justice Ginsburg, perhaps it’s time to remember her admonition that “measured motions” are often preferable to “breathtaking” judicial strokes. While there are moments when the defense of the Constitution requires bold action, there are many others when the answer is to leave the question of justice to the people’s elected representatives—and to let American democracy run its messy, necessary course.

The Madisonian Insight

From A Conversation with Justice Neil Gorsuch by Charles Cooke in National Review:

(assorted excerpts)

Justice Gorsuch’s animating conviction is that judges are there to understand and to enforce the Constitution as it was understood at the time of ratification, rather than to read their own views — or the views that they imagine are held by a majority of the citizenry — into the text. Or, put another way, Justice Gorsuch believes that the Constitution is a legal contract, rather than a vague and protean guidebook that should be interpreted and altered by a revising committee responsive to the democratic passions of the day. “When we depart from the original meaning of the Constitution and hand it over to judges,” he proposes, “we weaken our habit of self-government and we atrophy a muscle that Madison wanted us to exercise. It used to be that we had an amendment every ten or so years. We haven’t had an amendment since 1992. The amendments have dropped off in number since about the same time as the rise of ‘living constitutionalism.’ I don’t know if one can say that’s purely an accident or coincidence.”

Either way, Justice Gorsuch will not be helping to amend that Constitution himself. “The whole point” of his branch, he says, is to “uphold the Constitution and laws even — and especially — when they are unpopular. It would be easy for a judge to uphold the Constitution and laws when it’s popular. You wouldn’t need a judge for that. You can just get a legislator or politician to do that. The whole point of a judge is to take the slings and arrows — is to be unpopular a lot of the time. That’s my job.”

This theme, of the importance of protecting minority rights, is one that comes up frequently. And, in Gorsuch’s view, there is no better mechanism for that protection than the separation of powers. “This was the Madisonian insight,” he contends: “that you can make all sorts of promises on a piece of paper, and call it a ‘bill of rights,’ and it’s not worth the paper it’s written on unless you have some means to enforce it. Like any good contract, it’s only worth the enforcement mechanism it stands on. A lot of countries have bills of rights. In [my new] book, I talk about North Korea’s. It’s great! It’s got everything you want. My favorite is the ‘right to relaxation.’ I want that! It sounds great. But when power is all concentrated in one hand, it’s meaningless. It’s only as good as the whims of the dictator, the king.

”When this delegation of power is combined with laws that are sufficiently vague as to permit those agencies to fill in the blanks, and with a judiciary that is overly deferential to that blank-filling, the threat to liberty becomes obvious — especially when the rules change so frequently that it is hard for even the most diligent citizens to comply. “Madison recognized that if you don’t have written law, that’s an invitation to tyranny,” Gorsuch tells me. “The law is just whatever the king wants. If you have too much written law, you have a similar problem: a paper blizzard, so that nobody can be sure what their rights are. I wonder if, sometimes, we may be getting there.”

Conrad Black on American Legal System

from Conrad Black: Why Donald Trump will win big in 2020

A century after the U.S. Civil War, which at the cost of 750,000 dead in a population of 31 million suppressed the southern insurrection and emancipated the slaves, the majority of African-Americans were still segregated and could not vote. The U.S. justice system, though it has had many brilliant legislators, jurists and barristers, is an immense exploitive cartel of lawyers, very many of whom regularly engage in practices that would lead to disbarment in this country (and the Canadian legal system is nothing to write home about either). The U.S. criminal justice system, because of the corruption of the plea bargain system that facilitates the prosecutors’ extortion of perjured inculpatory evidence with impunity, is just an immense kangaroo court. Federal prosecutors win over 95 per cent of their cases, and over 95 per cent of those without a trial, so stacked is the deck. Whenever you hear any American talking about the rule of law or the law of the land or asserting that no one is above the law, it is time to get into your night attire and turn out the lights.

The Source of Judicial Controversies

The growth of the Court’s influence has coincided with that of the federal government itself. As the ambition of federal legislation increased from the New Deal onward, the possibilities for running afoul of the law increased dramatically. At the same time, the growth of the administrative state introduced the proliferating regulations of a multitude of federal agencies, administrations, and commissions, which have the force of law. Members of Congress found it simpler to “do something” about major problems by writing vague legislation and leaving the details to be worked out by “experts” in administrative agencies. They could pass laws that aspired to solving great problems without having to reach the compromises required to gain the necessary votes or being accountable for making the hard choices that governing demands.

All too often, the unelected experts charged with making those hard calls were not the non-political technocrats they were billed as but were pursuing a partisan end. Even an administrative state staffed by a mythical breed of pure-minded, disinterested bureaucrats would be subject to an almost irresistible tendency to metastasize. Regulation by agencies is relatively simple to promulgate—it merely takes the time and patience necessary to announce a rule, take comments, and show that the comments were in some way taken into consideration. Navigating bureaucratic procedure and red tape is easy compared with cobbling together a majority (or supermajority) of both houses of Congress and winning the president’s support. So with the growth of the administrative state, the volume and scope of federal law also grew. Issues that once were left to the states or the people were now literally made into federal cases.

As Congress’s ability to legislate has declined, the temptation to turn to simpler ways of governing has grown. Unable to work with Congress, President Obama famously turned to his “pen and phone,” that is, to executive orders and administrative agency action. Another alternative to dealing with a gridlocked Congress has been the courts, which themselves have abdicated some of their own authority.

Hemingway, Mollie- Severino, Carrie- Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court . Regnery Publishing. Kindle Edition

HO-
The authors recounted the sordid despicable maneuvers to derail the Kavanaugh appointment- but their summary dug deeper into why the SCOTUS has become such a focus in our government. This has evolved since the New Deal and was acceptable as long as it leaned in one direction. It is time to realize the possibilities when this power they created is in the hands of the opposition. The most important development in a more conservative court is to restore Congress’s legislative powers and responsibility.