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| It Ain't Yur Fadder's Supreme Court |
| 2008-06-15 |
| With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong. The question now is: Who plans to tell the presidential candidates? Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as though the composition of the Supreme Court actually matters. And that's a good thing, because -- the American public's lack of interest notwithstanding -- the court counts as much as almost every other issue facing the voters in November. Assuming that you work, worship, vote, parent, own property the government might covet or occasionally have sex, the high court will intimately affect your life. This is particularly true now that the average justice is older than Mount Rushmore and the next president may well have two or three new court picks in the space of a few years. But it's hard to generate much public hysteria over nameless, faceless future jurists deciding nameless, faceless future cases. And so the court plods along undisturbed, like the tortoise, while presidential elections zoom by like the hare. But the dialogue about the judiciary now taking place between the two presidential nominees is antiquated. Both McCain and Obama have now taken predictable stands on the Supreme Court of their dreams. In a speech last month, McCain offered a jeremiad Pronunciation: ˌjer-ə-ˈmî-əd, -ˌad Function: noun Etymology: French jérémiade, from Jérémie Jeremiah, from Late Latin Jeremias Date: 1780 : a prolonged lamentation or complaint; also : a cautionary or angry harangue about the evils of "judicial activism," deriding the "common and systematic abuse of our federal courts by the people we entrust with judicial power." Last March, Obama offered up his own judicial ideal: a judge with "enough empathy, enough feeling, for what ordinary people are going through." The main problem: Both McCain and Obama start from the premise that the Supreme Court is tidily balanced among four conservative judicial minimalists, four liberal judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at the center. This is a useful model for trying to stir up public concern about the court's composition, and the decision in at least one blockbuster case -- last Thursday's ruling that the Bush administration is violating the constitutional rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba -- did indeed go down along the traditional lines. Still, the current term is rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the past. This court term has revealed a series of patterns that aren't so easy to neatly file away: conservative moderation, moderate conservatism, liberal pragmatism and pragmatic minimalism. And that's just for starters. Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees. Last week, the high court handed down five more unanimous opinions. The week before, it served up a 5 to 4 split decision in which the dissenters included the usually conservative Chief Justice John G. Roberts Jr., his fellow Bush appointee Samuel A. Alito Jr., the moderate Kennedy and the liberal Stephen G. Breyer. We've passed the point of crying "strange bedfellows" at the Supreme Court. As of this month, conservative and liberal justices are routinely sharing a toothbrush. More at link |
| Posted by:Bobby |
| #15 You got me on the elite definition, Nimble Spemble. I never thought of it in those terms. |
| Posted by: trailing wife 2008-06-15 21:47 |
| #14 Only an individual who is a net tax payer should vote. Otherwise the leeches and welfare queens vote themselves a bigger part of the pie and your taxes go up. American are generous enough to help the needy without being forced. |
| Posted by: Hellfish 2008-06-15 17:32 |
| #13 Dictionary.com def 3. a group of persons exercising the major share of authority or influence within a larger group: |
| Posted by: Nimble Spemble 2008-06-15 15:26 |
| #12 Neither those we elect to represent us in Congress nor those who represent us in the electoral college are truly elites in the dictionary sense: those with the best education and background. Rather, they are a reasonably representative cross section of those that choose to involve themselves in our political process, with all the stupidity, cupidity and venality that implies. |
| Posted by: trailing wife 2008-06-15 15:01 |
| #11 Stalin said,"How many divisions does the Pope have?" Lincoln suspended habeus corpus as the constitution allows in time of rebellion or invasion. I am not aware that he ignored any SCOTUS decisions other than Dred Scott, one well worth ignoring. Andrew Jackson is reported to have said, "John Marshall has made his decision; let him enforce it now if he can." History has shown to the satisfaction of most that Jackson was in the wrong. Since then the proper way to change the courts decisions has been through legislation, amendment or appointment. |
| Posted by: Nimble Spemble 2008-06-15 14:45 |
| #10 I disagree - the court should not be 'elected'. I want the court to do what is right and not what is popular. As for elections. I think taxpaying citizens who are not on welfare (or any other unearned government support) should be the ones who vote. Democracy only works until people figure out that they can simply vote themselves more money. |
| Posted by: CrazyFool 2008-06-15 14:40 |
| #9 The "mob" doesn't run anything anywhere. In the US it chooses an "elite" and the elite runs things. I believe there is also a lot more to elites than that, that it is quite fascinating, and that this is neither the time nor the place to go into it all. However, I do agree that we get what we pay for. Haven't we been hammer them for not allowing a plebiscite to allow their citizen a say in the matter of the EU constitution ratification? I have not hammered them for not having a plebiscite per se, but for not giving the people a voice in the adoption of a change in the structure that governs them. Our Constitution was not adopted after a plebiscite, but after conventions which were selected by all the electors so that the single matter could be thoroughly debated and decided by that elite group. No such ratification process was used anywhere in the EU to allow the people to speak whether directly or through their representatives. The EU's earlier try at adopting an overt constitution began, "The King of the Belgians..." ours begins "We the People..." There is all the difference in the world. We have lived up to ours and they have lived down to theirs. |
| Posted by: Nimble Spemble 2008-06-15 14:31 |
| #8 Isn't there legal and historical precedence for the President simply ignorning the SCOTUS ruling on Guantanamo? As I recall, Lincoln basically told the SCOTUS to go f#$k themselves during the Civil War (or maybe it was someone else) by saying something along the lines of "How many divisions does so-and-so have?" SCOTUS rulings are often ignored, it seems to me, by most everyone, other courts and lawyers included, but most especially by the American people. |
| Posted by: FOTSGreg 2008-06-15 14:25 |
| #7 So you're saying you prefer 'elitists' to run things rather than the 'mob' and look at what we have screwing up with democracy. Well, I'll repeat - we get what we pay for in Congress. We pay crap to attract people to fun a multi-trillion dollar international economic engine, a mult-billion dollar international security system, manage vast programs and bureaucracies. Of course we get less than qualified people to do the job, because the 'other' Americans won't do it. Every time there is a increase in Congressional pay there's the faux outrage and denunciation about how the bums don't deserve it, but that attitude also keeps the better qualified people from even considering carrying the burden. So instead of us paying for and owning the congresscritters, other organizations/special interests do. We get what we paid for. Isn't that a concept. As for the 'republican' principle you seem wedded to, that of anti-mob, it isn't much different than the rationalization of the Brussels EUocrats' position. Haven't we been hammer them for not allowing a plebiscite to allow their citizen a say in the matter of the EU constitution ratification? Is this fundamentally no different? |
| Posted by: Procopius2k 2008-06-15 13:27 |
| #6 Right now I almost favor moving to restrict voting to landowners only. Count me in. Heinlein suggested only those who served in the Military (Any Capacity) Double for me, landholder AND ex Navy. |
| Posted by: Redneck Jim 2008-06-15 13:22 |
| #5 How about something like the Electoral College, You ask the people to vote, but you're not bound to follow their wishes. That way you'd get the "Flow" of opinion without all the "Sound bites" and whining. |
| Posted by: Redneck Jim 2008-06-15 13:15 |
| #4 I have to concur, NS. Precisely why the founders chose a republican style government. Right now I almost favor moving to restrict voting to landowners only. The rabble will overrun this government. It is happening. There is a far greater percentage of "Americans" today who know nothing of how our government was formed and how it ought to work than do. You can see it in voting patterns across the country. Unfortunately, things will necessarily have to become much worse before any real constructive action is taken. |
| Posted by: Woozle Elmeter 2700 2008-06-15 13:06 |
| #3 The stock solution for the last 100 years or so has been to make things more democratic. This has not made things better, the opposite. The founders understood the difference between a democracy and a republic, choosing the later and abhoring the former. Now, I would be willing to bet, most law school grads don't know the difference. The problem here is that the SC roughly reflects the opinions of congress and the elites of the country. So you really have to wonder why, if the people continually elect bozos to the congress, we would be better off with the same people electing the SCOTUS. They have certainly screwed up the senate, whose election should be returned to the state legislatures. |
| Posted by: Nimble Spemble 2008-06-15 12:44 |
| #2 Disagree P2k: that would reduce the SC elections to a series of sound bite campaigns, just like we have now; but since many Americans decide their votes based on these, I think that there aren't a lot of exciting quotes and theatrics coming from courtrooms. While not exciting, the current version works just fine for me, thank you very much. |
| Posted by: USN,Ret. (from home) 2008-06-15 12:19 |
| #1 Instead of trying to override the court time and time and time again only to see the court issue another fatwa, its time to make the seats of SCOTUS directly accountable to the people [like in the classical concept of a republic or democracy]. 12 year terms with/without one additional term. What excuse does Congress have not to do it other than POWER. If we good enough to elect Senators [something that took an amendment almost a hundred years ago], we're good enough to deal with these seats as well. It's not like the whole appointment processes hasn't degenerated into political circus anyway. |
| Posted by: Procopius2k 2008-06-15 12:07 |