Here comes da judge
Considering that the last time I attempted what I thought to be a timely and thought-provoking political post this site turned into a verbal food fight, I may be playing with fire here. But here goes:
McMtl recently posted to a link to a game called "Justice Match" on aclu.org. The point is to answer questions and see which Supreme Court justice you are most like. The questions are things like: "Should gay people face imprisonment for private acts of sexual intimacy" or, "If you wrote software for sharing music files, and people used the software to infringe copyrights, should you be held liable?"
The way these questions are posed illustrates a fundamental misunderstanding of what our Supreme Court (and, therefore, what any individual justice) is supposed to do. And this has nothing to do with these particular questions; conservatives frame the questions that are important to them in an equally flawed manner.
Here is my point: The question facing the Supreme Court (to use one example) is never "should gay people face imprisonment for private acts of sexual intimacy?" It is : "Can a statute outlawing gay sex be constitutional?" And there is a world of difference between those two questions. It is our legislatures (state and federal) who are supposed to answer the first question.
Commentators on both ends of the spectrum get angry with the Court when it insists on answering the second question and not the first. We act like they are dodging their responsibility and being overly legalistic. But, the Court is not meant to be a policy-generating body. It is a body designed to test the constitutionality of policies generated by legislatures.
I am certainly no conservative, but it was painful to have to watch John Roberts' confirmation hearings and hear explain this point over and over again to the Congress members (who may or may not have been playing dumb). Every time I turned on the TV some Congressperson was asking Roberts something like "how could you possibly rule against my school lunch funding plan? Do you want little children to starve to death?" His answer was always to the effect: "My opinion of your plan's constitutionality is not the same as my opinion whether it was a good policy." The point being that good policy can still be unconstitutional, just as there are plenty of truly awful policies that are completely constitutional.
I'm not picking on Democrats; it's just that they were the ones in the position to put the nominee through the ringer this time. It's the same mistake that conservatives make all the time. For instance, they just don't seem to get that even if making christianity the state religion would benefit everyone enormously (a big 'if', I realize) it is not constitutional.
Our national debate would be much more productive if we quit making every policy choice a constitutional issue. Then we could demand that Congress reassert itself as the policy-generating body and let the Court do what it is meant to do: evaluate those policies' constitutionality.
If anybody wants to comment on this, please do. I promise I will not call you stupid.
McMtl recently posted to a link to a game called "Justice Match" on aclu.org. The point is to answer questions and see which Supreme Court justice you are most like. The questions are things like: "Should gay people face imprisonment for private acts of sexual intimacy" or, "If you wrote software for sharing music files, and people used the software to infringe copyrights, should you be held liable?"
The way these questions are posed illustrates a fundamental misunderstanding of what our Supreme Court (and, therefore, what any individual justice) is supposed to do. And this has nothing to do with these particular questions; conservatives frame the questions that are important to them in an equally flawed manner.
Here is my point: The question facing the Supreme Court (to use one example) is never "should gay people face imprisonment for private acts of sexual intimacy?" It is : "Can a statute outlawing gay sex be constitutional?" And there is a world of difference between those two questions. It is our legislatures (state and federal) who are supposed to answer the first question.
Commentators on both ends of the spectrum get angry with the Court when it insists on answering the second question and not the first. We act like they are dodging their responsibility and being overly legalistic. But, the Court is not meant to be a policy-generating body. It is a body designed to test the constitutionality of policies generated by legislatures.
I am certainly no conservative, but it was painful to have to watch John Roberts' confirmation hearings and hear explain this point over and over again to the Congress members (who may or may not have been playing dumb). Every time I turned on the TV some Congressperson was asking Roberts something like "how could you possibly rule against my school lunch funding plan? Do you want little children to starve to death?" His answer was always to the effect: "My opinion of your plan's constitutionality is not the same as my opinion whether it was a good policy." The point being that good policy can still be unconstitutional, just as there are plenty of truly awful policies that are completely constitutional.
I'm not picking on Democrats; it's just that they were the ones in the position to put the nominee through the ringer this time. It's the same mistake that conservatives make all the time. For instance, they just don't seem to get that even if making christianity the state religion would benefit everyone enormously (a big 'if', I realize) it is not constitutional.
Our national debate would be much more productive if we quit making every policy choice a constitutional issue. Then we could demand that Congress reassert itself as the policy-generating body and let the Court do what it is meant to do: evaluate those policies' constitutionality.
If anybody wants to comment on this, please do. I promise I will not call you stupid.
posted by il Gatto Grande at
1:20 PM
2 Comments:
il gato, this post involves a very important concept, and was very clearly expressed. though most educated people are ostensibly aware of your point, i think that many [certainly myself included] often lose sight of it. as an aside, you should consider an AJC letter-to-the-editor or something.
obviously the ACLU "Justice Match" game politicizes and drastically oversimplifies the questions that questions that have come before the court and, you are right, in the first place basically poses the wrong questions. but so do the justices. all of them do, at least some of the time. the court doesn't function in the apolitical bubble that it ideally might, and in practice the justices political views are just as important as their understanding of the relevant precedent or the "framer's intent". the voting blocs within the court have as much to do with the politics of the cases as they do with the judicial philosophy that is being applied (as we've discussed, federalists lose any semblance their principled indignation at federal interference when a single state chooses to legalize gay marriage). so while the Justice Match game vastly oversimplified and wrongly framed the questions, the ones they asked were not wholly irrelevant.
roberts did seem very sharp at the confirmation hearings. and he said the right things to indicate respect and understanding of the court's role. but that doesn't mean he's not packing a stealth agenda. and it certainly doesn't mean his political views will not readily manifest themselves from the bench.
McMtl,
I agree with you. The justices differ in their ability to package their policy opinions as constitutional opinions. Unfortunately, Scalia appears to be the most skillful at doing so. I think that Roberts' obvious verbal abilities will make him even more skilled at that game than Scalia if he chooses to play it. Our only hope is that Roberts, having already gone on the record very eloquently during his confirmation hearings, will feel a tinge of reluctance before imitating Scalia.
Post a Comment
Subscribe to Post Comments [Atom]
<< Home