Wednesday, June 27, 2007

Grumpy old shark

Dahlia Lithwick writes in Slate that she does not quite know what to see about the Roberts court. She recognizes - at some level - that it would be - oh I don' t know - puerile to simply call them mean (although she thinks that they are), but just can't put her finger on what's wrong.

The one thing that she seems sure of is that there is no point in engaging the court on the merits. The key, for her, seems to be that they are ruling against the little guy - or, more accurately, wh0 she sees as the deserving little guy (unborn babies and grassroots organizations bucking the power of entrenched incumbents apparently have nothing coming). Chief Justice Roberts apparently does not see the need to set the court up as the arbiter of contentious social issues. What gives with that?

This is the type of thing that annoys conservatives about the left (and which, incidentally, drives a lot of people to the right.) It is the smug assumption that there cannot be any plausible reasons for others to disagree with you. It has to be "greed" or "hate" or just plain "meanness." It is the unexamined assumptions about what comprises the good and how it is to be achieved. (Government intervention on behalf of the poor is compassionate; free markets that raise our very definition of what it means to be poor are selfish.)

It really is embarrassing.

And, in any event, the heat is really ticking me off.

So, to climb out of the fray, what is it that distinguishes the Roberts court from what the Lithwcks of the world want it to be? Is it just cruel and vengeful? Is the problem, as she suggests, that it is a bunch of lawyers? If that's so, what does that mean? Is the problem too many people from Harvard and Yale ? (Pop quiz: who on the court did not go to one of these schools?) What would that mean?


jp said...

Some things written are not worth the paper used let alone the cost of our time (or emotions).
I copied a phrase from a Robert Duval movie.
“Some men aren’t worth the food they eat let alone the cost of a good rope.”

illusory tenant said...

The Constitution doesn't define the Judicial Power; in fact it authorizes the Article III courts to pronounce on "controversies," so I don't see what's so intrinsically meritorious about Scalia et al's "work to rule" jurisprudence.

His is a philosophical choice that is objectively no more or less correct than any other.

Rick Esenberg said...

That would be more persuasive if the concept of judging was invented by the Founders and would have had no meaning to the people who consented to the Constitution.

illusory tenant said...

Obviously I'm not suggesting the Framers invented the concept of judging.

As for what judging meant to the Framers, hopefully you're not suggesting it was such that it condemned "policy making" on the part of the courts, for which today's accusators of judicial "activism" express a strong aversion.

Because I think history indicates that the contemporary (and pre-Constitution) courts were policy makers non pareil. More generally, policy is the necessary effect of judicial rulemaking, and it becomes purely a matter of opinion whether or not that policy suits one's political preferences.

In other words, conservative judges make policy just as surely as liberal ones.

When Madison described the judiciary as the "least dangerous branch," he didn't mean the least powerful branch. He meant the one least likely to do violence against the rights -- enumerated and otherwise -- of the people. Both the legislature and the executive are uniquely situated to facilitate that violence, whereas the courts, in their expected wisdom, are the most effective bulwark against it.

Or so it seems to me.

What I imagine Lithwick and others are disappointed with are expectations the Roberts Court will work to dismantle a regime of enhanced liberty that previous Courts have spent nearly 100 years assembling (of course the legal grounds for that assembly are subject to reasonable disagreements).

In that sense, the Roberts Court is probably the most "results oriented" Court in recent memory, since it's certainly no secret what results the Republican vetters and appointers of federal judges are after, and they simply want judges who will implement those results.

Rick Esenberg said...

I don't think that asking whether or not a decision "makes policy" is the right question. Rather the issue is upon what may that policy be properly based. Madison did not think the judicary was the least dangerous branch because he thought that judges would be wise. Heck, he was Madison. He didn't think any faction was wise. That's why he thought it so important to divvy up power. If we think that judges ought to simply decide controversies in a way that is "wise" or "compassionate", we start to get very close to investing legislative and executive power in the judiciary which Madison rightly thought would lead to tyranny.

I understand what Lithwick and like-minded critics don't like about the Roberts court. Calling it "mean" or thinking of some similar character flaw doesn't even begin to advance things. To the contrary, it retards conversation.

illusory tenant said...

Well I'm about the last guy in the world you can expect to defend Dahlia Lithwick, particularly since reading her little piece in last month's Harper's, which inclined sharply toward hysteria.

Incidentally, Stevens went to Northwestern and, for bonus marks, Ginsburg graduated from Columbia although she'd previously attended Harvard.

What do I win. Got any Ludacris tickets?

Dad29 said...

Rick, you spend too much time out of your office.

Rick Esenberg said...

I could have scored Ludacris tickets, but I just have two for Roger Waters and the Reddess and I are going. I'm hoping for a flashback.

IT is right on the Harvard/Yale thing. Ginsburg's daughter was a year ahead of me at law school and my recollection is that she finished at Columbia because her husband got a job in New York. The thing is that you have to go back to 1975 to get a justice who didn't spend time in Cambridge or New Haven. In fact, 7 of the 9 are HLS grads. We literally rule.

Dad - Interesting observation. Watch this space for details.

Anonymous said...

It appears that Harvard has no problem building egos.

Do you really think that Harvard is now what it founders intended it to be? Wasn't it to advance the Christian faith?

Anonymous said...

So if she had said, oh, "inconsistent with nation's values" or that, say, the Roberts court "ignores the concern for the commonweal the framers intended to institutionalize" it wouldn't be so grating?

Finally, the notion that the "left" (whatever that means) consistently dodges meaningful argument with silly assumptions of evil on the part of the argument's proponent - makes me laugh.

Rick, I congratulate your Republican chutzpah. Flip the truth. At every level, all points of view other than hard right are met with: you hate our solders/nation; you care more about terrorists than our soldiers, you want to somehow spread homosexuality, promiscuity, etc., concern for the poor or for minorities is actually hatred of the same, you are trying to justify criminal behavior, you want to oppress christians, and - probably most common here - you want to do away with personal responsibility, have the government take over everything because you hate freedom, blah blah blah. To my amusement, this occasionally includes cute but nasty little nicknames for adversaries.

Rick this crap happens every day on your blog and others. Quick example, a post or two ago sparked a discussion of whether continuing to add increasingly less serious charges to the McGee cases made any sense. A number of points were made - and then you effectively accused participants of wanting to give McGee a pass.

You knowing dodge the substance and use a rhetorical hand grenade, a direct attack on the motives of speakers, to kill any discussion.

I also love the fact that this JP character is the first one to amen, with yet another strange comment suggesting that people he disagrees with simply shouldn't set it to words.

Anyway, Rick, I chortle.

Rick Esenberg said...

"So if she had said, oh, "inconsistent with nation's values" or that, say, the Roberts court "ignores the concern for the commonweal the framers intended to institutionalize" it wouldn't be so grating?"

Actually it wouldn't be - particularly if she went about building a case for that position. I don't suggest that there are not reasonable arguments to be made on the other side of many of these cases. For example, I have been very critical of recent trends in the decisions of the Wisconsin Supreme Court. Yet this fall - when I teach a course on the court - I'll explore the arguments in favor of the decisions I have criticized in print with students. Those arguments don't persuade me but I guarantee that they will persuade a few of them who will be be able to get quite good grades by deploying them well in their papers.

You read my response to the McGee comments out of context. The discussion there was whether some crimes should not be charged because there are already "enough" allegations. My question was whether you ought to get a free pass on criminal behavior because charging you with everything you did would take too many pages.