Friday, January 29, 2010

Courtier's Credibility


"""What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity. Antonin Scalia goes hunting with Dick Cheney, dubiously refuses to recuse himself from a lawsuit challenging the legality of Cheney's actions, and then rules in Cheney's favor. Scalia has an increasing tendency to make highly politicized comments about purely political conflicts, most recently defending torture in an interview with 60 Minutes. As part of Clarence Thomas' promotional efforts to sell his book, he spent substantial time building his conservative icon status with the furthest right-wing media elements -- even parading himself around on Rush Limbaugh's radio program -- and turned himself into the food fight of the week between Democrats and Republicans."""
Greenwald's name does not rank too high on our list of linkable e-pundits, but Greenwald raises an important point on the politicizing of the Supreme Court. Nearly all of the current crop of conservative judges have made blatantly political statements. Il Duce Scalia's probably the worst, as with his proclamation a year or so ago that Bush/Gore Florida 2000 was a done deal and Americans didn't need to worry their pretty heads about it anymore since the Big Daddies of SCOTUS had taken care of it, and declared the Truth of the matter, notwithstanding the numerous independent researchers and newspapers (including the WSJ) who concluded that tampering had occurred. Scalia, reputedly a conservative catholic, seems fairly unaware of St. Augustine's thoughts De Mendacio (not to say Old and New Testaments):

Greenwald covers the problems fairly well, but he doesn't really discuss judicial review itself, and the related issue of judicial and prosecutorial immunity. That would like require a bit of reflection if not ...analysis, however dull it might seem to the Snarkosphere. Really, the issue revolves around the old regress of the law which the Founders discussed at length. However un-hip, un-PC, or un-read Jefferson may be, he seems to have understood the potential for a Scalia-like quasi-monarchist court:

"[How] to check these unconstitutional invasions of... rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?" --Thomas Jefferson to Nathaniel Macon, 1821.

Dull dreary legalese---but a fairly serious issue, Rube. Is the state safer with a judiciary beholden to no one except itself, or by having the court subject to the Congress and Senate? (many Mericans don't realize that SCOTUS was not part of the original Constitution). Jefferson knew enough about British and French ancien regime history to realize that liberty was NOT to be entrusted to a panel of magistrates (as Locke had asserted as well); most of the anti-federalists were in agreement on this issue, but Adams and his judge-henchman John Marshall prevailed. The jacobins of 1792, of course, had other, somewhat extreme solutions for magistrates, part of "le deuxieme état".


mark hoback said...

Not that I really know enough to comment, but it does seem to me that the Court has more intrinsic power than any of the other 'equal parts'. It's bullshit. Maybe I'll start a meme about death schedules, (which will probably turn out to be true.)

CharleyCarp said...

SCOTUS was not part of the original Constitution


J said...

Mr. Carp: I might have phrased that more carefully. The right of Judicial Review was not in the US Const., as far as I know. The three powers were considered sort of equal; actually the judiciary probably less power than other two. And the anti-Federalists were not supportive of the Fed. court.

Thus, in effect the modern SCOTUS started with John Marshall. Jefferson detested Marshall and battled against him for years (I'm not waving the flag for Jeff. or states rights, but sort of important historically, however trite or 'Merican it may appear).

And recall US History circa 1799-1800 (or wiki it): Jeff. won the election in 1800 (barely). But right before TJ took office, Adams passed the Midnight Judges act--really a desperate attempt to preserve Federalist power (the Federalists were sort of a precursor to the GOP). Madison vs Marbury was part of that as well--establishing judicial review.

Padover's bio. of Jefferson goes into length on this issue: it went on for nearly three decades, until the death of Jefferson, and Adams.

Of course, Jefferson the person was flawed, and a hypocrite--e.g. the Hemmings affair, and he did keep some slaves (tho' they were treated well, supposedly)--possibly even a sinister sort of Machiavellian beneath all the states rights and Lockean rhetoric (tho' compared to say, Napoleon, or even Robespierre, Jeff. seems fairly benign). But he never wavered in his opposition to the Marshall court, or to the Federalist schemes.

CharleyCarp said...

Marshall was right in Marbury: it is the province of the judiciary to say what the law is. His rulings in connection with the Burr conspiracy were also mostly correct, and vitally important for the development of a constitutional republic.

Have you read that recent bio of Luther Martin? I think you'll like him, and his argument about constitutional overreach in M'Cullough v. Maryland is first rate. (Forgotten Founder, Drunken Prophet).

J said...

Scuzi for delay.

Ahh now.......

Au contraire!

Attorney I am not, nor professional historian--then most academic historians, even the yankee sort have apparently forgotten the ratification controversies....including Marbury (e.g. check the Eotaw

However I am fairly convinced from reading a few sources--not just Herr Wiki-land--that Marshall set up Judicial Review as a type of Federalist check on democracy, and that jud.rev. right was not what the Founders intended. In effect, the Federalists never wanted to give the legislature--whether Congress or Senate--full reins. The Anti-federalists did.

Marshall, by allowing Jud.rev., gave the Judiciary (usually the closest ally of the executive and Pres.) an override power. Jefferson and his pals did not intend that. I doubt Franklin or Washington would have approved (not sure whether GW was still alive). The Constitution did not specify jud. rev. (though I haven't memorized the nooks and crannies of the USCON.).

And as with many legal precedents the full effects of Marbury were not felt for years--decades. Anytime the court overrules democratically-established legislation Jud.Rev has been applied. Feingold's finance reforms--mostly obliterated in a matter of hours. They did the same with med-pot. And with Bush/Gore, really.

There may be more subtle issues, but in effect SCOTUS, via the added-power of Jud.Rev. denies democratically-chosen policies--the will of the people, negated. IN some cases, that may be acceptable (ie jim crow laws). But in the majority ofJud.Rev. rulings it's not. More like sedition, really.

CharleyCarp said...

Marshall played a leading role in ratification debates in Virginia, and I think has to be counted as a Founder. Certainly he was at least twice the lawyer Jefferson was.

Not a word in the Bill of Rights is worth a goddamn thing without a judiciary that has the power to enforce it. Ditto any and all restrictions in the Constitution. Would that the judiciary did a better job (eg, reining in the fiction of some special powers of the commander in chief).

CharleyCarp said...

No really, read the bio of Luther Martin. You'll like it.

CharleyCarp said...

Washington had passed away by the time the Marbury case was decided. He left his papers to Marshall though -- and I think one shouldn't assume all that much daylight between their views.

J said...

Marshall may have been a superior lawyer and superior person--tho' reading his tricky arguments in Marbury, I felt like he was a clever legalist. Jefferson on the other hand, however much a rogue, had a ne sais quoi--philosophical conception of the law, and of the principles of America (tho' again he's not perfect...but the character issue beside the point).

He's following from Locke, mainly (as were the french Encyclopedists, not that 'Merican schoolkids were ever taught that. Marx quotes Locke favorably as well)-- not Calvin or the Stuarts (and Marshall supposedly close to some religious fundamentalists, though...I have read he was friends with a few unitarian quacks...).

Anyway, Marshall made no great progressive decisions, anyway. He centralized everything--the Federalist model seems rightist-Hobbesian essentially, constitutional/judicial monarchy. Not democracy, or even classical republicanism (ie judges are not elected representatives). Bad Hobbesianism (and as Spooner barked at times, the social contract was never itself really hammered out via consensus...).

Jefferson's not a complete populist either: the Senate itself already had built-in checks against pure populism (ie the electoral college, for one).

Jeff.'s looking at the big picture: in the long run, Marbury meant that judges would have more power than the other govt. departments, or something like that. The Federalists re-created the Brit. Inns of Court, really, and brit. finance.

I suspect Jeff. wanted Anglo-common law itself replaced (Napoleonic code, perhaps? Or some other ...rational alternative to the King's law). Indeed the decisions of the Scalia/Rehnquist/Thomas conservative court show the wrong side of Federalist power.

I'll check out the Luther Martin bio.

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