Nathan Newman:
>I happen to think that in
> the long term, progressives do better to trust in democratic mobilization
> over the elitism of the courts, but there is a philosophical defense
>of courts as a bastion of liberty against state power. It just is
>rarely achieved.
========
-Is it a defense or a hope that, by appeal to philosophical
-theorizations of the law's 'self-restraint', or perhaps,
-self-limitations in a set of aporias it cannot overcome, that the
-state will respect a syntheses of models of liberties that it
-internalizes from the ongoing history of the larger culture?
The actual view of courts as possibly acting as a counterweight to legislatures and executives is that judges, in a non-corrupt system, do not benefit personally from the state exercising arbitrary power. Politicians can get reelected by directly plundering various populations to the advantage of supporters. This is the common complaint of the state shared by Marxists, public choice conservatives and anarchists. Judges with lifetime tenure are theoretically free from such a need to use state power to maintain their position and, as well, gain power against the elected branches only to the extent that they can substitute legal procedure - the realm they control - for arbitrary police power.
As well, because judges have a long view of politics that spans their direct political allies being in and out of office, they will tend to see preserving the rights of the opposition as more necessary than those holding executive or legislative power in the shorter term.
At least that's the theory and there's some truth there, but not enough to support judicial despotism.
-- Nathan Newman