Wednesday, June 08, 2005

The Highest (And Most Elderly And Most Secretive And Most Heavy-Handed) Court In The Land

In prompting a discussion of the Supreme Court, I intend to use several articles from the July 2005 edition of Reason magazine to center and frame the debate. I would provide links to these articles, but the print edition hit the street before the online edition hit the ether. I will, however, provide page numbers and links when they become available.

In general, these three pieces have different agendas, purposes and sparked different reactions in yours truly. The first, entitled "Who Should Reign Supreme?" (pp. 24-32) asked several "libertarian" legal experts their opinions on the possible nominees in Bush's second term, their current favorite justice and their favorite of all time. Why the quotation marks around "libertarian?" This article and the responses given show the decided confusion among libertarians over the place and role of the court in the greater scope of government. For example, when asked about their favorite justices of all time, there were a few consistant votes but all shared a similar thread. Several of these people picked the well-known likes of Louis Brandeis, Oliver Wendell Holmes and John Marshall. Others picked such lesser known people as John Marshall Harlan (the only dissenting vote in the infamous 1896 Plessy v. Ferguson decision).

The constant thread seemed to be an admiration for judges that protected civil liberties and wrote interesting and stimulating opinions, usually on dissent. While I agree, having taken a year of Constitutional Law as an undergrad, that there are few better reads (at least where the Supreme Court is concerned) than dissents by Louis Brandeis or almost anything by Oliver Wendell Holmes. It is also doubtless, moreover, that the court's protection of civil liberties is crucial. All of these people, however, missed the bigger point of the place of the court in the government and in society. One did get close in declaring his lack of an all-time Supreme Court Hero. Randy Barnett, professor of law at Boston University, said that

  • "Most famous Supreme Court opinions either streched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers out of existence. Given this history, I have no Supreme Court Heroes (p. 30)."

Their picks for favorite current justice were equally all over the map, with votes for everyone from Clarence Thomas and Antonin Scalia to Ruth Bader Ginsburg and John Paul Stevens (in fact, almost all nine current justices were mentioned with the notable exception of Steven Breyer). Same went with most choices for next appointment, mostly picking social conservative Reagan and Bush41 era appointees with decisions under their belt that lean toward protecting civil liberties and also limiting the spread of the government and its powers (which are good). The names are not well known outside the legal community, and will no doubt come to the fore in the years to come.

The second of the articles for consideration is entitled "Unleash the Judges: The Libertarian Case for Judicial Activism" by Damon W. Root (pp. 35-40). I had considerable problems with the argument and the proof offered therein by Mr. Root. He takes as his primary example of judicial activism in the name of libertarian causes Justice Stephen J. Field who served from 1863 to 1897. In his opinions in the Slaughterhouse Cases (1873) and Munn v. Illinois (1877), Root argues that Field represents the proper role for libertarian judicial activism; namely, protecting the rights of business over government regulation.

Now, I do agree in the complete and total separation of government and business, and in the fact that the above mentioned Field decisions did help to protect competition over regulation. What I take issue with is the nature of the argument in general. Root seems to argue, like people from all over the politcal spectrum, that judicial activism is good when it supports things that you support and bad when it goes against you beliefs. This rather one-sided argument misses the point that any action by the court that infringes on rights, trampling on the Constitution or making the sway of the state bigger and more pervasive are wrong and not consonant with the libertarian ideal. You cannot use evidence of positive decisions to prove that the result of those decisions are a positive reflection of a libertarian position of judicial activism. It makes the smaller point while missing the larger issue.

Lastly in July 2005's Reason, is an interview with judicial historian David J. Garrow entitled "Supreme Court Senility (pp. 44-46)." Garrow, in his research into recently deceased justice Harry Blackmun, makes some startiling findings on aged justices and their disconnect from the real work of the court. He also gives some shocking historical examples of elderly justices throughout history letting their clerks write decisions for them, ignoring duties, falling asleep during proceedings, forgetting lawyers and litigants names and so on. This exposes not only the notion that these appointments should maybe have an age limit but also the sloth and indifference that really exists at the highest levels of our government. These people are set for life, allow their staffers to do the hard work, and bask in the prestige of being a justice. Who would want to give this up? It is truly disturbing.

In summation, the Supreme Court is a subject for debate and contention. It's importance cannot be ignored and its place in society and history, but this place seems to be one of control and undue influence which cannot continue. I close with the words of legal scholar and economist Frederic Bastiat who, in his 1850 treatise The Law, wrote:

  • "Can the law-which necessarily requires the use of force-rationally be used for anything except protecting the rights of everyone? The law is organized justice. Now this must be said: When justice is organized by law-that is, by force-this excludes the idea of using law (force) to organize any human activity whatever...the organizing by law of any one of these would destroy the essential organization-justice. For truly, how can we imagine force being used against the liberty of citizens without it also being used against justice, and thus acting against its proper purpose(1)."

Your thoughts?


1. Frederic Bastiat, The Law, trans. by Dean Russell (Irvington-on-Hudson, NY: Foundation for Economic Education, 1998) , 20-21.

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