It is a disturbing subjugation ritual that we have been witnessing. Candidates for the U.S. Supreme Court cannot speak with the realism that permeates every first year class in every law school in the country.
Sonia Sotomayor - for fear of upsetting the apple cart - has signed on to the party line that judges don't make law, they intepret and apply the law, the constitution is immutable, etc. It will weaken her when she reaches the Supreme Court next month because she has foresworn "empathy" and sworn fealty to the Roberts Canon. In case you don't recall it, here it is - from the second day of the John Roberts confirmation hearings, under softball questioning by Senator Charles Grassley:
"[J]udges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were -- they referred to the law as the wise restraints that make men free.
And judges are the same way. We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.
They are constrained when they do that. They are constrained by the words that you choose to enact into a law -- in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.
And that cabining of their discretion -- that's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.
And then their job is interpreting the law. It is not making the law."
"Making law" is what inspired me and a generation of lawyers. Brown v. Board of Education of Topeka Kansas is the prime exemplar.
It is no accident that the opposition to Sonia Sotomayor is most intense from Senators like Jeff Sessions (R- Miss) from the states where slavery and legal segregation once held sway. The opposition to "making law", to "judicial activism" is code. It is the contemporary, polite version of the politics of white backlash, of the Nixonian "Southern strategy" that transformed the Republican party from the party of Lincoln to the party of Reagan.
It is important to be clear about that strategy, which was first implemented by Richard Nixon in 1968. It was foretold with stunning clarity by then-Nixon strategist Kevin Phillips in The Emerging Republican Majority (1969). Here it is in its raw articulation.
In a 1970 New York Times article Phillips wrote:
From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don't need any more than that... but Republicans would be shortsighted if they weakened enforcement of the Voting Rights Act. The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats.
Images: Sonia Sotomayor/Jeff Sessions, John Roberts/George W. Bush, Ronald Reagan (opposing Medicare), Richard Nixon/Checkers
Um, Sessions is from Alabama. But I guess everything south of DC (or is it New Jersey?) is just one big racist backwater to your enlightened eyes. I'm so happy you were inspired by Brown, but you can't possibly believe that it should be the paradigm for deciding cases. Obviously the result was the right one for society, and maybe the Court was the only institution that could make desegregation happen. Nonetheless, Brown is and should be an exception that proves the rule. (Don't believe me? I would guess there are only two SCOTUS cases that nearly every American can name, Brown and Roe. Both are discussed for their results, not their reasoning.)
ReplyDeleteThe southern strategy describes how the modern Republican party was built. The Senat critics 'focus on "wise Latina", and Ricci, a`reverse discrimination' case exemplify the dominant form of resistance to reversal of the impact of slavery and segregation.
ReplyDeleteThe stance is, in essence, OK we have Brown and the Voting rights act, so let's move on as if the past never happened and every race conscious measure is impermissible.
- GWC
The question of whether Brown is unique is a good one - and the answer is not plain.
ReplyDeleteMost people support Roe v. Wade - but many do not. So it is legitimate to ask if the court should have been so bold. The answer on Roe is that if one believes that the right is personal, that it is in fact a private right, then the Supreme Court was right to act as it did, rather than have a patchwork where some women have the right and others don't.
Other issues which pose similar challenges are the death penalty and gay marriage. In my essay Herald of Change - about New Jersey's legislative repeal of the death penalty - I am supportive of the New Jersey Supreme Court's rigorous review of death cases - and of its decision to defer to the political branches on the big question. Laudably, in my view, the Legislature voted for repeal.
Justice Barry Albin took the same stance, for the 4-3 majority, in the gay marriage case in New Jersey. The majority insisted on complete equality but left to the electorate the question of the label marriage. The Legislature may well soon take that step - as has the Maine legislature. But if the Massachusetts Supreme Judicial Court had not acted first the vital national discussion we are having might not have occurred.
There is a complex dialog that goes on between courts and citizenry and elected officials. Extracting declarations that courts must not "make law" shrivels the debate. - GWC