With the recent retirements from the US Supreme Court, much has been made of the importance of maintaining a “balance” on the bench, largely by those who feel that their particular philosophy will come up short if the existing balance is changed. In other words, liberals are concerned that a conservative George Bush would appoint conservatives to the bench. Imagine, a democratically elected president having the gall to fulfill a campaign promise. Horrors!
Why were there no liberal cries for maintaining balance on the Court when Bill Clinton replaced the conservative Byron White with the liberal Ruth Bader Ginsburg? Why no liberal gnashing of teeth when FDR radically altered the makeup of the Court in the 1930’s?
It would seem that we need to set aside the false notion of “balance” on the Court entirely. The idea that we somehow presently have an arithmetically and philosophically perfect ideological seesaw arrangement on the Court, with O’Connor as the fulcrum, is laughable in the sense that it is just not true. Further, there is no requirement that we have such an arrangement anyway, even if it were possible. And what is the underlying suggestion of such a notion? That we’ve achieved a state of constitutional nirvana and that no particular judicial philosophy should be advanced at the expense of the status quo?
Those who make that argument fall into the trap of admitting that their paramount concerns are ideology and outcomes as opposed to process or the impartial application of the Constitution. Harry Reid himself has admitted the importance he places on results and his disagreements with the results of a more conservative judicial philosophy. What happened to the cries of “no litmus tests?”
Given that much of liberalism’s policy victories in our country have come via the judiciary, it is not surprising to find that the liberal judges who’ve provided those victories are less likely to adhere to an originalist philosophy. What we have today, and what the liberals want to maintain, is outcome-based adjudication.
Look also at the example of liberal angst at the possible breakup of the Ninth Circuit Court of Appeals. The Ninth covers 40 percent of the land mass of the lower 48 and more than 20 percent of our population. It is the most backlogged court in the country, handling an average of 6,000 more cases per year than the other circuit courts. How can such a court be counted on to provide timely access to the judicial process?
Article comments
1 - Baronius
Drew - Excellent. I've always wondered why the Supreme Court doesn't have a Taney Chair, if preserving balance is the highest goal.
2 - Alethinos
Drew... I would recommend you NOT getting your "news" and "insights" off AM Talk Radio... You might also try a balanced intellectual menu of books and newspapers...
Lastly, you might, MIGHT rethink hoisting the "originalist" flag. It is a ludicrous concept and Scalia is delusional in his promotion of it. If you can't let go so easily you might trying reading and THINKING THROUGH these two books:
Active Liberty : Interpreting Our Democratic Constitution by Stephen Breyer
And
America's Constitution: A Biography by A.R. Amar
Alethinos
3 - Baronius
Alethinos - Wow, you seem angry. What is wrong with Drew's analysis?
4 - The Fifth Dentist
It's weak.
5 - Alethinos
Baronius:
"What conservatives want is not results driven by ideology as a guiding factor, but rather the results gained from an originalist interpretation and application of the intentions of those who wrote and ratified the Constitution."
This is the battle cry of those who KNOW what the Founders "originally" intended. Scalia loves to strut about and claim his originalist stance - until it doesn't suit his political ideology - then suddenly he is NOT an originalist at all...
I find this "philosophy" about as ludicrous as the wave of "deconstructionism" that swept US campuses in the 90s. It has about as much rational "punch".
The Constitution was designed by the Founding Fathers precisly because they KNEW that they wouldn't and couldn't know what the future of America would look like. THAT is why there are 3 branches of government that can work seperately and in concert with one another. This is WHY the SCOTUS CAN strike down a law of Congress - so YES it CAN in essence legislate from the bench. That is it's role.
The problem began long ago when, DESPITE the wishes and warning of certain Founding Fathers a two party system took hold. IMMEDIATELY the goal of BOTH parties was to "stack" the Court. It has become a time honored tradition since.
The ultra-right wing Republicans have been dreaming of the day when THEY could stack the Court in THEIR favor. I find it revolting when anyone tries to pass it off as "getting back to the good old days". There WERE NO GOOD OLD DAYS for the Court. Just better and worse days...
I beg you to do some research. Read a LOT of books from ALL perspectives. To do any less would make one an intellectual coward.
And, despite the fact that Taney did do some good on the Court, and despite the fact that often he is named as one of the "greats" of SCOTUS - Dread Scott cannot be forgiven. It was a cowardly approach.
And I am not angry. Irritated? Yes. Someone slipped me DECAF today!
Alethinos
6 - Baronius
Alethinos - I haven't read as much on law as I would like to, but I did read Scalia's "A Matter of Interpretation". The book contains an essay by Scalia, followed by responses from others in the field, among them Laurence Tribe and Dworkin. So I'm not completely ignorant about originalism, pro and con.
I would distinguish judicial activism from judicial review. Judicial review is the striking down of unconstitutional laws, activism is the striking down of stupid laws. There is no more noble act than the passing of a stupid law.
I mention Taney because his Scott desicion was reprehensible. He's the reductio ad absurdum of "balancing the Court". I agree with you that stacking the Court is a historic practice, and a dangerous one. I also agree that certain Republicans would prefer judges who vote according to the Republican platform rather than the Constitution. But a true originalist would be as narrowly states-rights as the Founding Fathers were. I don't favor originalism because it would lean Republican; I'm a Republican because it tends toward originalism.
As for the inhuman practice of decaffeination, it is among the acts that a moral society cannot tolerate. Partisanship ends at the coffeemaker.
7 - Alethinos
By God Baronius we ARE of the same coffee pot!! Sure, I might be a coffee whimp and insist on cream and sugar... But is this not a sign of a genteel state? Ok... I was stretching it there...
Good post fella - I appreciate your point and I can see we have more in common than not!
Alethinos