Thursday, September 30, 2004


A commenter writes:

Both you and Klinkner suffer from the same affliction. Hypocrisy. You like the decisions you like because they fit your values and beliefs regardless of whether they are consistent with each other.

I won't speak for the other person mentioned (he speaks volumes for himself), but let me try to defend myself. My ideas regarding when to limit or not limit the Court might be many things, but I don't think they are hypocritical. Unless you are a radical, small-d democrat who believes that we shouldn't have a Supreme Court, or an authoritarian who thinks that some Platonic guardians are necessary to keep the great unwashed from getting out of hand, you need to develop some sort of principled basis for when the Court should and should not exercise judicial review. In general, I say let the people decide, except in the circumstances I mentioned--fundamental political rights and discrete and insular minorities. At times, this means that I have to criticize Court decisions despite the fact that I agree with the substantive outcome. Roe v. Wade fits into this category. I strongly support the right to an abortion, in fact I think there should be public funding available to women who want the procedure. Nonetheless, I'm troubled by the fact that this was done through the Court and not through democratically elected legislatures.

The question for my critics is can you name a Supreme Court decision where you like the substantive outcome but nonetheless believe that the Court should have acted differently.

As for Bush v. Gore, the right to vote is one of the fundamental political rights that the Court should protect. So by all means, the Supreme Court should ensure that state election procedures conform to the Constitution. If not, the "republican government" clause and the 14th and 15th Amendments are meaningless. So my problem was not that the Court acted in Bush v. Gore, but that they acted wrongly. Instead of ensuring the fullest and fairest recount (one that Bush may well have won), they decided that in the interest of avoiding a political crisis they had to act.

Putting aside whether there was a crisis, especially since the majority defined it as a lack of legitimacy for their favored candidate, the Court arrogantly assumed that only they could defuse the crisis. The better option would have been for the recount to proceed. If Gore ended up winning that recount (and it's not clear that he would have), the Republicans who controlled the Florida legislature would have picked their own slate of electors. Facing two sets of electors from Florida, the matter would have gone to the House of Representatives where the majority-Republicans would have certified the Bush electors. The outcome would have been the same, but at least it would have been done through elected legislators. If people didn't like that outcome, they could have acted in the next election. With the decision being made by the Supreme Court, the only option was to rage impotently and wait for a handful of justices to kick.


Rothko said...

Maybe I'm being a little cynical but hypocricy is an inevitable outcome of belief. I don't judge it to be a bad thing. It just is. What I was asking of he-who-shall-remain-nameless and yourself and anyone else who posts here is to confront the contradictions head on. Don't shuffle facts, quote books etc just to try and cover up for an intellectual hicup. As I noted you have created a nice little metric to use when you feel judicial review is necessary. Palooka says it's valueless. I say you're both trying to make ends-meet. He supports federal intervention in Bush v. Gore and you support State's rights. I'll make the un-educated guess that in a case regarding the American's with Disabilites Act you both would probably would switch.
sides. That's it...I'm assuming a lot but I read you both enough to get where your coming from.

One other note about your judicial review metrics...I disagree fundementally with you about Roe...while I have a lot of problems with the concept of abortion as a right...I see real validity in the court stepping in to clarify it (though they did it poorly)...If something is a right in New York why shouldn't it be in Missouri? Why should Women in Alabama have to wait for a right that women in California already have? And if you're waiting for societal acceptance before making it a universal right... at what point is that reached? When Gallup says 51% of people in every state agree? I just see it as a way to slow the attainment of rights that already's algebraic = both sides of the equation have to be equal..hey and if we are all created equal...

Abortion may not be fundemental right... but if it is for some American's than why shouldn't it be for all? The court needed to step in and say yes or no otherwise you are permitting states to deny citizens of a right or you are allowing the practice of an abomination...

Palooka said...


Care to defend your "discrete and insular" criteria, which I demonstrated is fairly meaningless?

The Florida Supreme Court twisted the election statute beyond belief. There shouldn't have even been a single manual recount. Manual recounts were in case of "error in the tabulation of the vote." There was NO ERROR in the tabulation of the vote.

So, it doesn't really make much sense to allow the Florida Supreme Court (full of Dems) to twist the crystal clear statute, in contravention to the US Constitution.

Palooka said...

Extra-textual constitutional rights should be deeply rooted in our cultural and legal traditions.