>>> dhenwood at panix.com 05/14/01 05:41PM >>>
Nathan Newman wrote:
>conservative judicial
>activists
So what argument do you have from law or principle that conservative judicial activism is any different from liberal judicial activism? Is it that you just like liberal judicial activism better?
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CB: Since law is politics, the argument is based on the same principles that other political arguments are based on. The Warren Court moved things in a progressive direction, like a reform within capitalism like the New Deal did, so support it. The Burgher and Rehnquist courts have moved things in a reactionary direction.
The distinction between activism and restraint is illusory as far as defining important judicial trends. There are always lots of statutes with language that is ambiguous and requires interpretation , because Bismarck, that reactionary , was correct that making law is like making sausage -messy. Thereby there are often loose ends and lumps in statutes and ordinances. The main significance of the "actvist / restraint" distinction is historically concrete: it was introduced by rightwingers trying to rein in the direction the Warren Court had set. With that project complete with rightwing Court takeover, now the rightwingers who championed restraint before are grossly hypocritically activist (although not always, as in the instant case, the statutes are bad so they just rely, in "restraint", on the statutes).
I agree with Nathan. The overall impression I have is that Rehnquist has shifted from a phony "principled and consistent persona" to a crassly opportunistic power monger, probably based on the fact that when Nixon appointed him he was in a minority opposed to the majority momentum from the Warren Court and that was his best tactic in that context. In other words, his "principledness" was actually situationalist too.
Excuse the analogy, but it reminds me of the sacred principle of the conservatives in the Goldwater period: Opposition to budget deficits ! That "principle" proved to be illusory when Reagan ran up the biggest deficits and debt in history. Some of Rehnquist's conservative "principles" were as phony as some of Goldwater's. Their real principles are capitalism, racism, male supremacy, the whole rightwing nine yards. "Judical restraint" was a tactic meant to restrain the court when it was relatively liberal, a tactic to be discarded when the conservatives have the power to be active.
The important question is how is it that mass reform struggle actually impacts court decisions on rare ocassions, as in _Brown v Bd of Ed_ , _Roe v Wade_ et al. ? The pattern of ad hoc , politically based rather than consistent legal theory reasoned decisionmaking should be exposed to the masses by progressive lawyers as the part of the overall power struggle process that it is.
Nathan on the below, hey, I'm a legal scholar too, and I wasn't the least bit shocked at any of this stuff the Rehnquist gang is doing. Try my jurisprudence, and you won't be so shocked.
The NLG discussion of impeachment is interesting. Of course, there would have to be elected impeaching majorities in the Congress. But at least it might highlight how blatant the rightwing judiciary has become in casting off its "principled and restrained" disguise.
CB
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Nathan said:
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.