June 27, 2005

Obligatory Supreme Court Post--Someone had to do it

With the slew of cases decided by the Supreme Court today, a lot of blogging has been devoted to commentary about those decisions and the possibility that some of our beloved justices will be hanging up their robes relatively soon.

Not wanting LGB to be left out, I'll add a critique of Malchow's post about O'Connor, in which he frets about the possibility that, in the interest of maintaining minority representation on SCOTUS, when Sandra D. retires, it will seem necessary to fill that slot with another woman, or at least a "non-white, non-male replacement," a prospect Malchow could do without.

Jingoistic Joe says:
There is no room for "representation" of 400 million people in a nine-person body. Let's find some sharp people, forget about sex and non-whiteness, and call it a day.

I, of course, disagree.

I disagree that some notion of minority representation on the Supreme Court is unimportant. The reason why we have nine justices instead of one person whom we deem to be supremely knowledgeable in the law is to achieve a certain amount of balance. Granted, when the Supreme Court was instituted, balance meant that not all the justices should be lawyers from plantations in Virginia who part their hair on the left. Now, however, it does--and should--mean finding eminently qualified jurists who come at the law from different perspectives, perspectives that come from a much broader range of life experiences. One way to achieve this balance is by appointing justices that are minorities.

While I believe that an unqualified candidate should never be given an appointment simply by virtue of minority status, there are more than enough highly qualified minority jurists in the nation that it wouldn't be a miscarriage of justice in the slightest to narrow the pool.


  1. Regardless of the race and sex of any given new justice, said newcomer will be a far-right ideologue. Clearly Malchow missed the memo, but the newest con trick is to find racial minorities who also happen to be conservative extremists. Surely, Andrew, you can recognize that someone's race does not necessarily garuntee a representatively diverse perspective. Do you think that Clarence Thomas's presence on the court gives African Americans a more audible voice in government? The way in which a person's politics and legal perspective will come to affect this nation's diverse population is more important than the particular demographic group from which they hail.

  2. I agree. I was speaking more about the principle of minority representation as a good thing in itself on the Court, not necessarily in specific cases, such as this one.

    But I for one think that right now, we should concentrate on finding Justices who simply make sense--not necessarily liberal sense, but who will write decisions that make the judiciary not look like a bunch of tools. It just so happens that conservative extremists don't make sense, so looking for reasonable and reasoning jurists excludes that category.

    I would much rather have a Court of 6 moderate conservatives who write well-reasoned and carefully thought out decisions than have a Court that is 4-4 and 1 that will make the whole judicial branch look incompetent because of bad opinions (like today's split on the Ten Commandments).

    I have enough faith in the law that i don't think 6 moderate conservatives will be as bad as a weak judiciary, which will only make Congress and the President stronger.

  3. Anonymous2:12 AM

    What would define a moderate conservative? If a justice was a Pro-life Catholic originalist, is there any chance he could be seen as a "moderate"? Because right now, I think that whoever Bush nominates (should there be a vacancy) will be painted as an extremist regardless of his or her record, and it will turn into a dog fight no matter what.

  4. See, I don't really think you can define 'moderate' for justices simply in terms of attributes (like Pro-Life, Catholic, etc.) or in terms of (just the) issues. What is important is the candidate's record in terms of the decisions s/he has made. If many of them are outright politicking for the religious or corporate right, then that judge isn't a moderate. If the judge is clearly an impartial arbiter who decides cases without an overt political agenda (i.e. fairly), though with an evidently conservative understanding of the law, then s/he would be a moderate conservative judge.

    A judge could be Pro-Life but not pledge to crusade to overturn Roe v. Wade, you know.

    But your point is well taken. Unless Bush nominates a bleeding-heart liberal, that person will be painted as uber-conservative. Chances are, though, that that he will nominate an uber-con.

  5. "... I think that whoever Bush nominates (should there be a vacancy) will be painted as an extremist regardless of his or her record..."

    This comment assumes that Bush nominates anyone other than an extremist, which is an unlikely scenario. Let us not forget that, not too long ago, his allies in the religious right were saying that the threats of Nazi Germany and Al Qaeda pale in comparison to that of 'activist judges.' We'll be lucky if Bush appoints someone (unlike Bolton) who even believes the institution to which they are being appointed has a right to exist.

    Prediction: Roe v. Wade is going to be overturned. Discuss.

  6. All of the above comments presume any new SCOTUS judge, whether liberal or conservative, however that may be defined, will be an "activist" and cast their judgments in parallel with their moral/political/religious/philosophical position, not based upon what the constitution says.

    If that's the case, and I'm not naive enough to believe it's not in many instances, then the purpose of the Supreme Court is thoroughly compromised.

    That's why I believe Scalia's approach of determining what the constitution text meant to the people who adopted it, and ruling from that understanding is the only sound way for a SC justice to make judgments. Until recently, that was the normal practice, not the exception. Then, if that text is considered lacking for contemporary society, there's a defined process to amend it. But you don't 'contemporize' the U.S. Constitution by issuing opinions that for all practical purposes amends it to what five superlegislators might believe.

  7. Feetballbill, what is your position on Brown v. Board?

  8. I'm not claiming to be a constitutional lawyer, George, but my understanding of Brown v. Board of Education is that this ruling overturned the prior precedent of Plessy v. Ferguson, which had held to that point that there was no constitutional prohibition to segregation.

    The Brown ruling appears to me to be an instance whereby the Warren Court allowed politics and personal distaste for segregation and the clear failure of 'separate but equal' schools to overcome original intent, precedent, or historical perspective to write new law.

    You can argue whether the end justifies the means. It certainly sped up the upheaval that resulted in the civil rights acts of the 1960's, which is where segregation rightly should have been dealt with as well (legislation, that is). Maybe segregation would have been addressed via proper legislative action in the sixties, I don't know.

    Nevertheless, I do not believe that the Supreme Court was correct to usurp legislative and executive functions in this manner.

    Again regarding your first comment, George, I don't think it should matter what the religion or politics of a justice may be. When that overrides whether they have demonstrated sound jurisprudence on the bench and are good lawyers, we have become a country not of laws, but whatever feels good. It more of the 'boomers gone wild' video, and unfortunately I are one.

  9. That's why I believe Scalia's approach of determining what the constitution text meant to the people who adopted it, and ruling from that understanding is the only sound way for a SC justice to make judgments.

    And what on earth makes you believe Scalia actually does this other than his own politicking (the only Justice who does so much grandstanding) and the rhetoric of te cons? It's completely empty rhetoric.

    Scalia is turning out to be the most wilful interpreter of the Constitution on the bench. He defers to states' rights every time the federal government tries to do something that goes against his VERY vocal, extremely conservative Catholic dogma, but then he gives the federal government unchecked control over our lives when the issue agrees with his police-state vision of order.

  10. Scalia has said that he would have been in the majority on Brown. Many feel that this contradicts his "originalism," and that he only says this so as not to come off as a racist. It's still okay to hate gays in much of the country, though, and so Scalia continues to do so. See here. Disclosure: These comments are coming from a law student who asked Scalia, in a public forum, whether he sodomized his wife. This student's actions were condemned by his law school and were at the center of his controversy. That said, the statements that he uses in his own defense are, to my knowledge, factually true. It's quite well written and not-so-vaguely Foucauldian even.

  11. Whether Scalia would have supported Brown v. or whether he's a homophobe or whether he's politically conservative---that discussion is just your neoconphobia and/or my liberalphobia.

    And I believe it should be irrelevant to the issue.

    The Constitution is simply a legal document, and the words mean what they say. To interpret them today, I believe the justices have to determine what the words meant to the authors and ratifiers at the time of its acceptance, rule from that context and let the people and legislature deal with the results. That may be by amendment or new legislation or just letting off steam via blogs.

    Isn't anything else simply five people taking over the government? George, Andrew, somebody please help me understand why such a coup d'etat is a good thing?

  12. It more of the 'boomers gone wild' video, and unfortunately I are one.

    Feetballbill: Would you please interpret this quasi-sentence according to your original intention? Because I can't make head or tails of it.

    See, while the Framers of the Constitution could write (unlike you), they were not all of one mind, and many interpreted the Constitution differently even a few decades after it was written, just like Christianity underwent some of its most seriously questioning debates (Gentiles--ok or not? for example) within decades of a supposedly divine founder.

    The Constitution and the Bill of Rights, like so many other documents of importance, specifically invite interpretation by the breadth of their legal strokes, and the Supreme Court has a very long history of doing so.

    The sum total of these two points is that a full retrieval of the Framers' intentions is impossible, and that doesn't even begin to broach the fact that there are numerous legal and administrative issues that exist today that were not even conceived of by the Framers.

    As with your nonsensical sentence, interpretation is necessary for the Constitution to carry meaning. Interpretation is necessary because it is not always clear what the Framers were thinking, why they were thinking it, or which of them was thinking what.