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| Home Front: Culture Wars |
| The Right Has the Wrong Legal Theory |
| 2005-01-11 |
| Odds are, George W. Bush will soon appoint a new Chief Justice. More Supreme Court appointments will follow, along with hundreds of lower-court judges. The federal judiciary will soon be Bush Country, a fact that could have larger long-term effects than Social Security reform and the war in Iraq. Unless something changes, the effects will be bad. Not because Bush's judges and Justices will be too conservative, but because they won't be conservative enough. Most conservative judges today believe in a theory that leads to very un-conservative results -- law that amounts to little more than judges' opinions, concentrated power in the hands of an allegedly all-knowing Supreme Court, and legal rules that reinforce the power of liberal interest groups like teachers' unions. The right has the wrong legal theory. The theory boils down to three "isms": federalism, originalism, and formalism. The unifying theme behind this trinity is that all are things Earl Warren wasn't. Warren believed in broad Congressional power to regulate the economy and protect civil rights. Modern-day federalists believe in states' rights. Warren believed in a living Constitution that changes with the times. Originalists think the Constitution means exactly what James Madison thought it meant when he wrote it. Warren cared about the consequences of his decisions. Formalist judges follow legal forms and procedures and believe that worrying about consequences is a job for politicians. All these theories are supposed to limit judges' power, so they can't "make law from the bench," as the President likes to say. But the holy trinity of conservative legal thought does not cabin judges' power so much as hide it. Judging, Scalia-style, is a little like a card trick: the audience's attention is drawn to one hand while the other does all the work. Take the three isms one at a time. The basic idea behind federalism is to avoid concentrated power -- to give more authority to Austin and Boston, and less to inside-the-Beltway power brokers. Actually, judicially enforced federalism does the opposite. In a world with strong constitutional lines between the federal government and the states, the greatest power is held by whoever draws those lines. That power goes to nine unelected Supreme Court Justices, answerable to no one. So much for limiting the influence of Washington power brokers. If state and local governments desperately needed the Court's protection, that might be an acceptable price to pay. But they don't. Over the last half-century, state and local governments have grown faster than the federal government. Remove Social Security, and the growth gap widens. States and localities are doing fine, without the help of the Justices. The pull and tug of politics protects state prerogatives a good deal better than Sandra O'Connor or Anthony Kennedy could. |
| Posted by:tipper |