The right is severely confused and conflicted about federal judges. They want judicial restraint when they believe states will do the right thing, as in the case of abortion rights, but they want an activist federal judiciary when they don’t trust the states. Florida especially never seems to do the right thing, whether it’s counting votes or pulling the plug on the irreversibly brain dead and chronically comatose.
But the problem is that you can’t have it both ways: either the states have meaningful power to enact public policy or they don’t. We observed on this very blog that Harriet Miers was nominated because the White House decided to go the activist route. They apparently reasoned that the right’s frustration over their inability to “save” Schiavo through extraordinary legal means was paramount, and besides, there were good if cynical political reasons to keep Roe on the books.
It turns out they miscalculated, underestimating the fickleness of their base and the depth of feeling about Roe. So we got Sam Alito, the very model of judicial restraint, the kind of judge who would strike down Roe in a heartbeat and leave the state of Florida to decide Terri Schiavo’s fate. So be it.
David Broder, bless his heart, adds to the confusion about Alito in this column on the wussiness of the President:
Under other circumstances, President Bush’s choice of Judge Samuel Alito for the Supreme Court would have been seen as a bold move by a strong president with a clear policy objective. By choosing a man of superior intellectual heft and an indelible record of conservative views on major social issues, Bush would have been challenging his critics on the Democratic side to test their arguments in an arena where everything favored him: a Republican Senate. (emphasis added)
No, no, no. The Supreme Court doesn’t have “views on social issues”. Supreme Court justices have views on Constitutional issues which may be said to be liberal or conservative independent of their policy wishes. Can we please get this right and stop pretending that Alito thinks strip-searching 10-year-olds or requiring spousal notification before abortion are “good ideas?” His job isn’t to express his wishes, it’s to decide if the state has the powers that it thinks it has, period.
Public policy is the province of the legislative branch. Really.
HT John Cole.
Bravo. Well said.
Thank you.
Public policy is the province of the legislative branch. Really.
And when the legislature specifically punts to judicial branch? As it has since the beginning of the republic? There would be no argument about the constitutionality of abortion laws if the 10th ammendment was writen differently for example. Does the separation of powers and the allocation of functions in the constitution provide a state-by-state allowance for all kinds of bizarre limitations on rights by states (e.g., Griswold)? That question alone highlights the profound intellectual bankruptcy of the “originalist” or “strict constructionist” movment.
Which leads back to what you inveigh against: you cannot- simply cannot- avoid a policy reading into the constitution one way or another.
Moreover, I would say that history has shown that your way is not only incorrect, but tends towards instability. Court rulings such as Dredd Scott and the rulings affirming “yellow dog” contracts did nothing but ultimately increase the level of violence.
Does the separation of powers and the allocation of functions in the constitution provide a state-by-state allowance for all kinds of bizarre limitations on rights by states (e.g., Griswold)?
In a word, yes.