Monday, April 07, 2008

More supreme court post-mortem

A couple of reactions to two posts from liberal bloggers on the recent Supreme Court race. First, Ben Brothers makes some sense. In recent days, both the outgoing incumbent Justice Louis Butler and Chief Justice Shirley Abrahamson were were quoted as saying that there is no such thing as a "conservative" and "liberal" justice. These statements are implausible on their face. They would require one to believe that all of the ideological energy behind both judicial elections and appointments to the bench are expended in vain.

This doesn't mean that liberal and conservative justices merely vote in accordance with their policy wishes. All judges - at least since Bill Douglas left the Supreme Court - view themselves as constrained in some way by the law. One of Justice Butler's occasional indulgences when he believed that the law compelled an undesirable result was to write an essay on why the law was wrong. We can argue about the propriety of that sort of thing but it does tend to illustrate that even someone with a fairly expansive view of his role did not regard it to be unlimited.

Justice Butler was also quoted as saying that "[w]hen they say 'activism,' that's just a pejorative people throw out when they disagree with your decision but they can't or won't explain why ...." Of course, that is a pejorative in of itself. Some of us explained in great detail why we disagree and that the essence of our disagreement often had to do with the need to reconcile judicial review with democratic rule - something that a few scholars argue can't be done. The point that we made was that the court had adopted rules about equal protection, views of its supervisory authority, methods of statutory and constitutional interpretation and approaches to empirical evidence that expanded its discretion in a way that impinged upon the prerogatives of the other branches of government.

When Brothers suggests that these arguments are not well taken because conservative judges are more likely to strike down laws or overrule precedent, he is at least engaging the argument rather than saying that we shouldn't have it. (For a variety of reasons beyond the scope of this post, the stats he cited don't support his side of it; but that' another matter.)One of the burdens of some of the stuff I wrote and said during the campaign was to illustrate that philosophy matters. The belief of some that we ought to pick the judge with the better resume is, in my view, wrong. There may have been a time in our legal culture when that was true but it is not today.

Brothers wants to have that debate about philosophy. Good for him.

Paul Soglin, however, wants to chase the Bildeburgers. John Fund writes a piece extolling, as one might expect a conservative to do, the results of last Tuesday's elections. Soglin wants to follow the money.

It really isn't hard. Given the impact of the court's decisions, people who are affected by them want to be heard. Those who believe that they are better served by a liberal court - the plaintiff's bar, casinos, WEAC, etc. - spent money to influence the election. Those who feel that they are better served by a conservative one - business, the pro-life community, etc - did the same thing. I would argue that the conservative groups were largely defensive. They were more concerned that the court not interfere with the political processes than it reach any particular substantive result. But even if you don't buy into my characterization, it's not hard to figure out who was playing and why.

Maybe it would be better if this did not happen. I would suggest to you that a court adopting a more limited view of its authority is going to attract less attention than one that wants to change the face of the state.

8 comments:

Dad29 said...

I would suggest to you that a court adopting a more limited view of its authority is going to attract less attention

Precisely the same as if Congress or the Legislature would stop aggrandizing power(s) to themselves; lobby moneys would go away.

Anonymous said...

If you're advocating for the Courts to return to the traditional role intended for them, then I'm in full agreement with you.

Wasn't it appointed judges in 1947 that started the war on tradition and religion of this country that continues to this day?

illusory tenant said...

We can argue about the propriety of that sort of thing ...

We could, but someone assuming the "against" position should bear in mind, to choose but one example, Hugo Black's series of opinions -- not to mention those of his interlocutors -- for the Court on the question of the incorporation of the Bill of Rights.

I'd practically question the sanity of anybody who'd prefer the ex post facto excision of that discussion from the literature.

illusory tenant said...

Wasn't it appointed judges in 1947 that started the war on tradition and religion of this country that continues to this day?

The Church (and the State) won in Everson.

Terrence Berres said...

Illusory Tenant (if that is his real name) wrote "someone assuming the 'against' position should bear in mind, to choose but one example, Hugo Black's series of opinions -- not to mention those of his interlocutors -- for the Court on the question of the incorporation of the Bill of Rights."


See Lynn Adelman and Shelley Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court's Critics, 91 Marquette Law Review 425, 449, "as in most states, the Warren Court’s incorporation of much of the Bill of Rights into the Fourteenth Amendment, making its protections enforceable against the states, more or less stopped the development of Wisconsin constitutional law in its tracks. [footnote omitted]"

Anonymous said...

it or should I say Tom? (my impression when I read that was that it was also an alias) -

"The Church (and the State) won in Everson."

Your premise that no one for 150 years prior to Everson was happy with the Fed's keeping there nose out of State and religious affairs, is somewhat niave'.

The unhappiness started with Everson along with the decline in our nation. 1% of our population now in prison along with the numerous other societal problems speak for themselves.

illusory tenant said...

Your premise ...

Premise? What premise? I neither stated nor even assumed any premise. I merely reported the result in Everson.

Nor was I saying anything about Black's position on (total, all in one fell swoop) incorporation. I was only using it as an example to observe that debating amongst judges has a long and storied tradition, and only implying (although I endorse the sentiments) that that debate has made the literature richer and is better to be carried on, for everyone's benefit, in public, and in print.

Anonymous said...

it -

do you really think that Samual Adams and the "anti-federalists" would have finally voted to ratify the constitution if the amendments didn't protect the soverenty of the states and religious rights of the states?