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What is the quality of your intent?

-Thurgood Marshall

On the train to work this morning I listened to Harvard Law professor Laurence Tribe's appearance on NPR's On Point. Tribe was hawking his new book Uncertain Justice. Tribe is a prominent liberal legal mind, but he, in many ways, represents what's wrong with liberal jurisprudence. "The Supreme Court is not conservative. . . it's a radical oversimplification to say so and does a disservice," he said. This worship of a clearly political organ, that is has become conservative, is foolish and gets to the heart of a recent essay in Jacobin by Rob Hunter.

From Hunter's writing:

Disdaining political conflict, liberals would rather seek consensus through conversation. And they would prefer that such conversations take place only among a narrow stratum of elites. . . Liberal enthusiasm for pursuing policy change through the Court rather than through confrontation and struggle illustrates the degree to which progressive politics has become emptied of content and purpose.
Tribe's NPR interview was infuriating; he loathed to even call the Supreme Court a political body. This type of weird Court worship is not only foolish, but dangerous given how it puts a civil institution, the Court, on a pedestal as if it's actors are soulless brokers lacking any political agenda. We know this is not true because Roberts was a shrewd politician when he upheld Obamacare, just as Scalia and Thomas are blatant  political actors when they speak to far right legal/political organizations. I adore Ginsburg, but she too was a political actor when he, essentially, instructed Congress to write the Lilly Ledbetter Act.

Hunter is right on when he critiques a liberal jurisprudence, a la Tribe, that bows down at the Supreme Court's altar; his suggestion that the Left tirelessly focus on mass mobilization and organization is also completely correct. But Hunter was somewhat misguided when he wrote "Liberals should abandon the search for progressive outcomes through constitutional law. It’s not too late — it’s never too late — to join in the search for a politics in which judicial interference with democracy is not only unnecessary but unthinkable."

His assertion presupposes, even if he doesn't intend for it, that democracy always works. But we know from American history that the citizenry can often be wrong. And sometimes the Court has to step in and correct the course as it did when it produced the "Right to Privacy" idea that legalized abortion rights. For example, if we had waited for the masses to mobilize on this particular issue women would have had to wait much longer for control of their own bodies. "Liberals criticize originalism as arbitrary and backward-looking, even as they deploy arbitrary and backward-looking arguments to defend liberal decisions," Hunter said, even as he accused the Court of manufacturing the right to privacy theory.

The general point, that we have to focus on amassing broad coalitions, is the appropriate advice but it's reckless to not think the Court, especially one with Sotomayors and Ginsburgs, can play an important role in these matters. Conservatives smartly focused on the Court in the 1970s and 1980s and it's now paying off. The Left has to do the same, while never losing sight of organizing and shifting the public's imagination.

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Comment Preferences

  •  Tip Jar (5+ / 0-)

    "Nobody can give you freedom. Nobody can give you equality or justice or anything. If you're a human, you take it."

    by The X on Thu Jun 12, 2014 at 01:21:42 PM PDT

  •  NPR coverage often makes my head hurt... (6+ / 0-)

    While I support and believe in the SCOTUS...

    I also think Justice Thomas should be impeached for his wife's continued work as a lobbyist, where she advertises her connections to SCOTUS as an advantage to advocating for policies that appear before the court. WTF? Is there no sense of decency?

    A mind like a book, has to be open to function properly.

    by falconer520 on Thu Jun 12, 2014 at 01:56:25 PM PDT

    •  Mrs. Thomas did not work for any organization (0+ / 0-)

      who was a party, or even filed an amicus brief, while Justice Thomas was on the bench. The rules that guide federal judges would not have required Justice Thomas to recuse himself if he had been on a lower Court.

      This short filing by a Ninth Circuit Judge who ruled on Prop 8 while his spouse was the regional Executive Director of the ACLU is considered an exceptional summary of the recusal rules as it applies to spousal employment.

      http://cdn.ca9.uscourts.gov/...

      "let's talk about that" uid 92953

      by VClib on Sun Jun 15, 2014 at 08:37:58 PM PDT

      [ Parent ]

  •  SCOTUS needs to be reformed... (2+ / 0-)
    Recommended by:
    sajiocity, alypsee1

    It can't handle all of the cases it needs to, Justices tend to retire based on the partisan status of who controls the whitehouse and this is made worse by people living much longer then they once did, making this a much easier thing for justices todo.

    Normal Judicial conduct, related to keeping an air of being above the political fray, or any concept of the court being politically impartial is a joke that has been such for soooo long, that we have grown to accept it as being the normal mundane state of things and we really shouldn't.

    Ruling on cases, and setting of legal precedence need to be separated, the later should require a higher bar then simply the 5 most corrupt justices whimming it so.

    Change Justices terms from life to 16 years, Create 2 more benches of Justices that operate the same as the current court, Any of the benches could accept a case, but all cases would be give to one of the 3 benches at random, any case that would set/change precedence  would have to be confirmed by the remaining two benches. A particular President could only appoint Justices to one of the 3 benches per term, each bench would have two backup Justice's in case of retirement.

    •  Interesting ideas... (0+ / 0-)

      I've always wondered about the "life time" term...

      Article. III., Sec. 1.
      The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
      Is "during good Behavior" justification for a life time term?

      If so providing for a 16 year term would require a constitutional amendment.

      And I don't see either party allowing a Presdient from the opposing party seating new/additional Justices.

      We can't even agree to split the over worked 9th Circuit...

      A mind like a book, has to be open to function properly.

      by falconer520 on Thu Jun 12, 2014 at 03:21:39 PM PDT

      [ Parent ]

  •  A "working democracy" is not my goal. (1+ / 0-)
    Recommended by:
    sajiocity

    In a working democracy, the minority survives only at the sufferance of the majority.

    The United States was constructed to strongly constrain majorities, in everything from the Bill of Rights to staggered terms of office to Senate representation.

    I agree that anti-democratic measures inside an anti-democratic body, such as filibusters and blue slips, take these protections much too far.  But the notion that "democracy" is the end-goal is profoundly ahistorical and naive.  "If men were angels," indeed.

  •  It would be nice if positions around here (1+ / 0-)
    Recommended by:
    sajiocity

    were a little more nuanced than "impeach" and "worship" - no one in the real world takes either seriously.

    (Psst: People who really adore Justice Ginsburg know how to spell her name.)

    •  Thanks for this. . . (0+ / 0-)

      You've added a lot to the conservation.

      "Nobody can give you freedom. Nobody can give you equality or justice or anything. If you're a human, you take it."

      by The X on Fri Jun 13, 2014 at 06:35:57 AM PDT

      [ Parent ]

      •  You're welcome. It was my great pleasure! (0+ / 0-)

        Conservation has always been a passion of mine, even before it turned into the "ecology" movement way back when. In this instance, though, it was conservation of time and energy. Normally I would have written a detailed reply to luminousone11 and falconer520 because they raised issues within my interest and knowledge, but since the diarist couldn't be bothered to tend the diary and it wasn't attracting serious discussion, I didn't bother. And Musial has been offering variations on his or her comment for a while now in diaries about the Court, but diarists never seem to engage it; that too would be a worthy discussion. Also interesting would be to solicit viewpoints on the Court as a "political organ" and what that means, as there are differences of both definition and opinion on the subject. But you weren't around to do that, and haven't bothered to comment to anyone except me in what appears to be a bit of a snit. Some might conclude that you are either not interested in or not up to a discussion of the issues in your own diary.

        I'm sorry if I was too terse in my comment to you. Perhaps I should have been more explicit from the start. Here are more words: I think your reference to

        "The Supreme Court is not conservative. . . it's a radical oversimplification to say so and does a disservice,"
        as signifying "worship" was off the mark to the point of silliness, and it got worse from there on that score with your bowing down and your altar. I found it hyperbolic if not juvenile, akin to the nonsense regularly trotted out here about selectively impeaching 5 justices.  Doesn't make you unique here -- you'll see plenty of diaries at about the same level and folks who will reflexively applaud anything that appears to attack the Court in its current incarnation. It'll be fun to watch what happens here if the composition swings back our way.

        That said, I agree with your final paragraph even if not the lead in, I do appreciate the reference's to Tribe's new book, which I had not yet seen, and I congratulate you for fixing the spelling of RBG's name. See you round the GOS.

        •  I understand your points (0+ / 0-)

          But if you listened to Tribe on the NPR program. He was sycophantic in his praise of the court. But one had to listen to the program to fully understand just why I said that about Tribe.

          Also, it's not silly to be upset with someone who defends this Court as not being conservative.

          These issues are complicated, no doubt, but the Court's detrimental effect on the country is quite pellucid.

          "Nobody can give you freedom. Nobody can give you equality or justice or anything. If you're a human, you take it."

          by The X on Sun Jun 15, 2014 at 03:33:10 PM PDT

          [ Parent ]

  •  Liberal law professors are judicial supremacists, (0+ / 0-)

    support expanded Court jurisdiction, don't lament the death of the political question doctrine, argue that court curbing legislation is a slippery slope. All this flies in the face of progressivism from Lincoln to TR to FDR and LBJ.

    JS didn't start with Marbury, rather with Dred Scott, as a coup d'etat resisted by Lincoln and a radicalized Northern electorate that had its future taken away by the fraudulent decision. The venerable "doubtful case" rule had conferred the benefit of the doubt to Congress as to consitutionality of laws. But after the civil war, the Court threw it out, in the process striking down civil rights in 1883 and imposing what Louis Boudin called government by judiciary. Dred Scott's violation of separation of powers was the guiding principle of the gilded age, fought against by TR in the 1912 election, and by FDR in his successful 1937 attack on a fraudulent Court that thought it could perpetuate the Great Depression. FDR created a unique Court that respected democracy but that did not survive the egregious Buckley v. Valeo.

    When the Court in McCutcheon strips Congress's powers to fight corruption at Art. 1 Sec. 4 and 5, the republican form of government guaranteed by Art. 4 Sec. 4 is gone. Antiorruption and national defense are the two supraconstitutional imperatives. The Court must be curbed, its pretended jurisdiction removed under the exceptions clause. The liberal professors are horrified by this Madisonian check and balance, reject Madison, but admit Ex Parte McCardle was rightly decided. They are the reason why the bereft Dems promote the fool's errand of an amendment, when the amendment approach was rejected by both FDR and LBJ, making the DP a party of legislative revolution. See, Bruce Ackerman, "We the People" series. The professors, Ackerman excluded, blithely ignore the fall of the republic. See, Ackerman, "The decline and fall of the American republic".

  •  The fact is, the US Constitution is so (1+ / 0-)
    Recommended by:
    alypsee1

    …hopelessly obsolete and unfit for the 21st century -- that it is the responsibility of the high court to Channel Seth to figure out whatever the hell it means, depending on who their corporate sponsors are at the moment.

    It’s not too late — it’s never too late — to join in the search for a politics in which judicial interference with democracy is not only unnecessary but unthinkable."
    This is why the other high courts of the world no longer pay any attention to the decisions of the US Supreme Court. (At one time they did.)

    Constitutionally, the US is unmoored from any comprehensive principles that might be designed to benefit the people in the future-now where we exist.

  •  US Extreme Court (0+ / 0-)

    "Without deviation from the norm, progress is not possible" --Frank Zappa

    by Paddy999 on Thu Jun 12, 2014 at 08:09:21 PM PDT

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