Thursday, June 26, 2008

Trade offs and Judges

My previous post on opinion writers was sparked by a move made by one of my favorite bloggers. He'd been writing more and more frequently, and generally very well, but I got the sense that he felt obliged to put out two posts a day, and it was showing. There's another who posts something serious about three times a year, but everybody reads him when he does.

I'd noticed that my own posting is far less frequent. I still have many "words of wisdom" on events every day, but no immediate access (I still have this little delicacy about posting from work). And at the end of the day my comment is often superfluous. Others said the same thing, and there's no prize for writing it first (or last). And sometimes, because the reporting is quick and inaccurate, my impressions were wrong.

Take the Supreme Court decision on the death penalty and rape, for example: Kennedy vs Louisiana. The early reports, for a non-Constitutional scholar like me, were pretty sketchy and suggested that the court was picking some strange interpretation of the law because some justices didn't like the death penalty.

But I'd been bitten before when jumping to conclusions based on the newspapers, so I thought I'd wait and find out what the pros had to say.

It turns out that a lot of pros think Kennedy was disingenuous in framing the core of his arguments, claiming a "national consensus" against the death penalty for rape when both polls and legislation actually point the other way.

So the court was being high-handed after all. But I wasn't in a position to say so myself, since I didn't really know the details.

Why would the court decide that some policy decisions are too important to leave to people or the legislatures? Isn't that a blow against the principle of democratic government?

I thought about it a while, and decided that "yes, it is opposed to democratic governance." And, "yes, they have some precedent for that." Written into the Constitution are amendments and compromises designed to take some policy decisions out of the hands of legislatures. Little things like the first amendment and the slavery compromise. The first amendment was meant to insure liberty by taking away the rights of legislatures and executives (and presumably judges, though I smell a conflict of interest here) to restrict citizen's freedom of speech or demand religious duties from him and so on. The slavery compromise locked in slavery--it couldn't be abolished on a national level.

I have no complaint about the amendments. I understand that the slavery compromise was required at the time, even though it merely kicked the can down the road a bit. But I notice that around the world there's a tendency to lard the constitutions with such policy decisions; taking them away from the legislatures and the people. The constitution of Brazil specifies that female convicts may keep their children with them while they are breast feeding. No doubt a noble thought, but why is this not simply a law instead of a meta-law?

The same impulse that puts policy in the Brazilian constitution moves our court to read policy out of the Constitution, whether it is there or not. They probably have good intentions: they want to keep careless legislators from trampling on the principles the court finds important.

Sometimes they are right, and the legislators are wrong: Brandenburg v. Ohio. Sometimes they were technically correct but politically dead wrong: Plessy v. Ferguson. And sometimes they were completely screwed up: Dred Scott v. Sandford, Roe v. Wade. It looks pretty plain that this is one of the times they overreached.

What can we do about this sort of policy decision from the bench?

I'm not sure. We need a brake on legislative imprudence and fashionable erosions of liberties, so we need that function of the Supreme Court (as witness today's decision about the DC handgun bad--though it was disappointingly narrow for such a no-brainer). I don't see electing judges as a solution, nor term limits. Probably our best solution is extra-judicial: reform the law schools. Since Roe v Wade is now holy scripture for one and a half political parties, pretty much all law schools, and nearly a majority of the population, judges inapt to support such overreaching aren't going to be appointed for a while, so we have to expect more such decisions for a few generations.

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