>>> nathan at newman.org 05/14/01 02:56PM >>>
-The problem is that the Court rightwing is flagrantly political in picking -and choosing which level of government to hold as dominating. They strike -down state laws like the Burma law and medical marijuana in the name of -federal power, then strike down federal laws like the ADA and Violence -Against Women Act in the name of state power. The liberal wing is at least -has a consistent legal philosophy in upholding federal law consistently, but -like in Bush v. Gore, the conservatives on the Court have zero principles, -just using various inconsistent federalism arguments to strike down the -state and federal laws they don't like as political ideology takes them.
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>CB: You noticed that, huh , Nathan ? Sounds like the new Yale school of
legal realism is budding. As >Lawyer Lenin said, "Law is politics".
Actually, this is not about legal realism. Legal realism was born under the Lochner Court to understand how a consistent legal philosophy could still serve specific political goals, despite a seeming adherance to principle.
The Rehnquist Court rightwing has no real philosophy, no consistent principle that need be analyzed to derive a deeper political course. It's politics from top to bottom. One of the most bizarre statements in Bush v. Gore was that after it announced its supposed Equal Protection argument, the majority then said, this principle applied only to this particular case and facts and not to try to apply it in other cases. That is pretty much a summary of their jurisprudence - apply principles as politically motivated but with no real philosophical force.
What shocked most legal scholars about Bush v. Gore was the recognition of the complete opportunism of the Rehnquist Court. Up to that point, some (including myself to a minor degree) were willing to grant some consistency of principle, however rightwing and bad, to the Court. Bush v. Gore crystalized the inconsistencies in the previous record into being the pattern of opportunism, which these other decisions have merely reinforced.
What is shocking about the rightwing majority is that if you know the politics of a case, you can almost always know the outcome without knowing the legal question involved. You cannot really say that about most historical courts- the overarching legal principles they promoted would override the politics of particular cases quite often. Those overarching principles were not Olympian but based on deep second-order political beliefs, but the superstructure of law and its legitimacy has always been about a longer term form of political hegemony, not the short-term raw political power embodied in the Rehnquist Court.
The National Lawyers Guild is conducting a serious internal debate about launching an impeachment drive against the Five rightwing Justices based on Bush v. Gore and, possibly, this series of lawless constitutional decisions. I actually think there is a loss of legitimating authority embodied in these decisions that makes such a drive viable, not in likely impeachment in the near term, but in helping build a credible ideological assault on the legitimacy of the Court.
-- Nathan Newman