Thinking honestly about judging

I've been looking high and low for an honest republican talking about judicial matters.  Today, in the person of Charles Krauthammer (yeah, it surprised me too), we have the beginnings of an honest discussion.  It doesn't take long to figure out why such honesty is all too rare. 

Let's start with the stuff that he genuinely deserves credit for:

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?

DeLay is wrong about the Schiavo case. I think the law was a bad law, but the trial judge applied it properly. I think the judge assessed the medical evidence incorrectly, but that is a matter of interpretation, not of judicial impropriety or denial of due process. There is nothing here with which to threaten this judge or the judicial system.

But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between "some recent episodes of courthouse violence" and judicial activism -- as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system.

Fine, I say.  Now that we've gotten all the looney tune stuff out of the way, let's have a real discussion.  Krauthammer then lays some more groundwork:

Let us have a bit of sanity here. One of the glories of American democracy is the independence of the judiciary. The deference and reverence it enjoys are priceless assets. The Supreme Court is the only institution that could have ended the Bush-Gore fiasco of 2000 with the immediacy, finality and, yes, legitimacy that it did.

Well, fine.  Obviously, I disagree with the Bush-Gore decision, but mostly because the majority justices were terribly inconsistent with their previous decisions.  But Krauthammer is right about the basic point: that judicial independence is essential.  He's even more right about this:

Moreover, and more generally, judicial independence and supremacy are necessary checks on the tyranny of popular majorities.

But once he's given that away, he's given away the ballgame.  He tries to get it back with this:

It was Ruth Bader Ginsburg who said that Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." Whenever such an obvious sociological truth is pointed out, proponents of judicial imperialism immediately resort to their trump card: Brown v. Board of Education and the courts' role in ending Jim Crow.

But Brown was different. The race cases were cases of a disenfranchised citizenry. The representative branches of government were legitimately superseded because they were not representative. Millions of blacks could not vote. Millions of blacks could not participate in civic life. The courts had to act to end this aberration and injustice, and, to their glory, they did.

[As an aside, let's make it clear that Justice Ginsburg is pro-choice, and indeed, that quotation is taken terribly out of context (took me a while to dig up this old article, Speaking in a Judicial Voice, from a 1992 NYU Law Review; it's only on LexisNexis, so no link unfortunately)

The framers of the Constitution allowed to rest in the Court's hands large authority to rule on the Constitution's meaning; but the framers, as I noted at the outset, armed the Court with no swords to carry out its pronouncements. President Andrew Jackson in 1832, according to an often-told legend, said of a Supreme Court decision he did not like: "The Chief Justice has made his decision, now let him enforce it." n144 With prestige to persuade, but not physical power to enforce, with a will for self-preservation and the knowledge that they are not "a bevy of Platonic Guardians," n145 the Justices generally follow, they do not lead, changes taking place elsewhere in society. n146 But without taking giant strides and thereby risking a backlash too forceful to contain, the Court, through constitutional adjudication, can reinforce or signal a green light for a social change. In most of the post-1970 gender-classification cases, unlike Roe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive. Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.

As you can tell, Ginsburg thinks that Roe is a exception to what she otherwise thought the court was doing in the 70s, i.e., "the Court, through constitutional adjudication, can reinforce or signal a green light for a social change."  So much for Krauthammer's honesty, but nevermind.] 

Let's deal with his point about the Brown decision.  First of all Krauthammer gets away with an argumentative slight of hand by jumping from one topic to another, "But Brown was different. The race cases were cases of a disenfranchised citizenry.[...] Millions of blacks could not vote."  Brown, of course, was only about school segregation, not about voting rights.  But let's ignore that sloppiness for the moment. 

Krauthammer says that Brown was different.  It wasn't.  Obviously, African-Americans were being disenfranchised and millions weren't allowed to vote.  But even if they had been allowed to vote on the school segregation issue, they would have lost. White majorities wouldn't have suddenly allowed schools to be integrated.  Given the viciousness with which they fought it for 20-30 years, given that Southern governors ran and won on opposing integration, that should be all too clear. 

So if Krauthammer is going to allow that courts have the right and the duty to protect minority constitutional rights, why not extend that logically and include other minority groups?  Or are some minority groups more protected than others?  Why not further extend it logically, and say that courts should protect constitutional rights?  Whether the right to privacy exists in the Constitution or not is worth debating; but let's debate it, not call it 'legislating from the bench.'

Herein lies the basic problem with conservative constitutional arguments.  If you commit yourself to a radical majoritarianism, you're left in a situation in which blacks and whites are still using separate drinking fountains.  Since this is not something that anyone is willing to accept these days, Charles's friends often have to resort to dishonesty to persuade people, of the "Democrats hate religion" variety.

-- Michael

Comments

[Jeff]

Michael

Although I am not personally enamoured of Krauthammer's usual tone, I am afraid you are being unfair in your criticism of this article. First, he is writing for general readers a newspaper column with a very tight word limit, not a law review article for legal scholars.

Second, and far more important, the Ginsburg quote is NOT out of context for the point Krauthammer is making. He is not trying to characterize the "gender-classification cases" of the 1970's (if he were, your criticism that Ginsburg was drawing a distinction between most of those cases and Roe v. Wade would be absolutely valid.) He is simply pointing out that someone sympathetic to pro-choice recognizes that having decided the issue judicially rather than legislatively eliminated an obvious source of popular legitimacy. It is virtually unarguable that the result has been thirty years of political acrimony and intense politicization of judicial selection.

Third, it would be fair to say that Krauthammer is extremely superficial in analyzing the tensions between majority rule and the rule of law. (As I said, his argument is condensed into a newspaper column, and I suspect an entire book would be necessary to address that topic in depth.) He goes no deeper than to recognize, and to try to distinguish, a case in which his personal beliefs are a) that a judicial decision unsupported by, indeed arguably contrary to, legislative enactment was proper, and b) that the public eventually came to accept that the judicial decision was legally and politically proper. But the fact that you disagree with his basis for distinguishing the two cases does not justify accusing him of sleight of hand: he openly gives his grounds for distinguishing them.

Fourth, it is also perfectly possible to make fun both of his legal and his historical grounds. Brown v. Board of Education generated incredible political heat: paratroopers in the Little Rock schools, "Impeach Earl Warren," etc. Nor am I sure that either decision was not supported by a majority of the voting population: the northern states had provided basic civil rights to blacks from the 1860's onward, an important condition precedent to the 14th and 15th amendments to the federal constitution, and polls show fairly consistent majorities in favor of some right to abortion. Finally, he overlooks the legal distinction between the very clear-cut constitutional language supporting Brown v. Board of Education, virtually black-letter law, and the lack of such support for Roe v. Wade.

A weak argument is not a dishonest one. And in this case, his argument can be made a whole lot stronger. You may disagree with his argument that the courts should exercise self-restraint and that legislative rather than judicial solutions should generally, not invariably, be preferred. But you will convince no one not already convinced that the argument is wrong by labeling it dishonest.

The Wingnut Strikes Again

[HWL]

jeff,

your comments aren't unfair, but i think you're misinterpreting something. i actually don't think krauthammer is being particularly dishonest in this column. i tried to say so: "Today, in the person of Charles Krauthammer (yeah, it surprised me too), we have the beginnings of an honest discussion."

my point was, as you state, that his argument is weak. in fact, i would venture to state further that you and i agree for the most part on the weaknesses in his argument.

the only places i would accuse him of dishonesty are somewhat trivial: in his quotation of ginsburg. ginsburg is clearly drawing a line, and it's fair to say that she probably thinks roe was unhelpful in a general sense. but she does also clearly think that "Court, through constitutional adjudication, can reinforce or signal a green light for a social change."

and without that crucial bit of information, krauthammer seems to be enlisting her help in trying to show how crazy it is to allow "four unelected robed eminences in Massachusetts to revolutionize the very definition of marriage." it's the rhetoric of his argument that strikes me as dishonest; it's of the "even the librul justice ginsburg thinks..."

the other place i'd accuse him of dishonesty is in the bit about brown; though to be fair, i don't know if it's dishonest or just sloppy. either way it shouldn't be in the column. there's an argumentative slight of hand:

But Brown was different. The race cases were cases of a disenfranchised citizenry. The representative branches of government were legitimately superseded because they were not representative. Millions of blacks could not vote. Millions of blacks could not participate in civic life.

he's not careful to show that brown was a case about school segregation, not voting rights. he appears to be conflating the two, and this, again, is a rhetoric slight-of-hand.

to address your rather more interesting point, though: "Nor am I sure that either decision was not supported by a majority of the voting population." It is of course hard to say whether a national majority existed to overturn school segregation (I suspect it didn't), but certainly the political will did not. No bill would have passed either house of congress in 1954 mandating national school integration.

And as for the state level, I think clearly there was no majority in Southern states for integration, even if every African-American voted.

My point is that accomplishing integration through a legislative process certainly would have put it off a decade or two, if not more. As a constitutional matter, the court acted properly in protecting minority rights, as it often does in other contexts, even when it goes against the will of the legislature.

again, i don't think krauthammer's being dishonest, but just arguing poorly; but i think krauthammer is in a minority as far as the honesty issue goes. many on your side, unfortunately, choose to demagogue this issue, because, as i tried to show, public arguments like krauthammer's tend to fall flat.

[dmeyers]

Talk about resorting to dishonest,

"If you commit yourself to a radical majoritarianism, you're left in a situation in which blacks and whites are still using separate drinking fountains. Since this is not something that anyone is willing to accept these days, Charles's friends often have to resort to dishonesty to persuade people, of the "Democrats hate religion" variety."

So are you saying if majority ruled we would still have massive discrimination? You say we would be left with a situation where whites and blacks are using separate drinking fountains.

It seems like "radical majoritarianism" passed the 14th Ammendment, gave the right for women to vote and passed the 1964 Civil Rights act... so much for separate drinking fountains.

Once again, the left is so afraid of "gov't of the people and by the people". I do not favor an ammendment banning abortion but do support overturning Roe and throwing the issue back to the states, just like is done with gun carry laws.

Many states allow their citizens to openly carry a gun or carry a gun concealled, and many do not. There are those that claim the 2nd Ammendment is an individual right and allows you to own and/or carry a firearm and there are many who do not believe this. Anyway, this issue has been left up to the people in the individual states and that is exactly what should be done with Roe.

David Brooks takes up this issue of stopping the political process via Roe in this article. I think the makes some good points in

http://www.nytimes.com/2005/04/21/opinion/21brooks.html?n=Top%2fOpinion%2fEditorials%20and%20Op%2dEd%2fOp%2dEd%2fColumnists%2fDavid%20Brooks

He said,

"When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate."

This is a main point that I believe regarding Roe. He ends with

"The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better. "

When you get down to the heart of the matter Roe v. Wade is at the heart of the entire judicial debates. He is right, LET THE PEOPLE DECIDE...

[Jeff]

Michael

I find this a bit awkward. You and I agree that Krauthammer has presented his argument badly, but we may, probably do, disagree about the validity of the argument properly presented. Given his poor presentation, I cannot be sure that I am interpreting him as he intended, but I suspect that he is trying to say something quite different from what you think he is.

I admit he does not explicitly say this, but what I think he means is: it was proper for the court to impose its views in Brown, which of course involved public schooling, because black disenfranchisement meant that the legislative branch was not responsive to black citizens and hence neither democraticic nor legitimate in its approach to racial issues. That is not sleight of hand in the context of an argument about the proper limits of judicial review, but I agree it is sloppy (and also superficial.) Judicial review becomes a virtual nullity if it is justified only in cases of disenfranchisement. I doubt that is his position, but who can tell.

As for the Ginsburg point, you may or may not be right, depending on what he is trying to say. If he is trying to say that even Ginsburg agrees that the judiciary should take a restrained view of its powers and that it has no role in helping to shape a gradually emerging political consensus, then that is dishonest (and stupid as well because virtually everyone knows that that is not Ginsburg's opinion.) If, on the other hand, he is merely trying to say that even Ginsburg recognizes that judicial decisions lack one basis for legitimacy that legislative decisions normally have, that is not dishonest. I am not quick to accuse others of dishonesty when an honest interpretation is possible.

Lastly, I certainly did not mean to imply that it would have been better to end separate black schools through legislative means. Like the court itself, I believe that the plain language of the 14th amendment required that decision without any reference to black disenfrachisement, which may not even have applied in Kansas, and that Plassy v. Ferguson is a blot on the judicial history of the U.S.

[HWL]

dmeyers says

LET THE PEOPLE DECIDE...

Once again, the left is so afraid of "gov't of the people and by the people".

so, dmeyers, you think that Brown v. Board should be overturned?

[Cheryl]

No, he just thinks that every incestuous bastard in the RED STATES should have the power to peer up his old lady's skirt to see if there is a baby in there.

The critical point that is missing from dmeyer's consciousness is that Roe was about the right to medical privacy. The supreme court decided that a non-viable fetus is a part of the mother's body, to dispose of as she wishes, not a ward of the state.

The ruling was a basic ruling on the interpretation of the word 'man'. The Supreme Court decided that a non-viable fetus that is completely dependent on someone else's body for its survival is not a 'man'.

The right to privacy argument is merely a mechanism to keep the government from sniffing between my legs. If dmeyers wants to define every zygote as a 'man' then I suppose he could label a cornfield as a crowd of Republicans too. After all, who eats all that corn in Kansas?