Nathan Newman wrote:
> 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
================
>From a review of "Brandeis and the Progressive Constitution":
http://jurist.law.pitt.edu/lawbooks/revfeb01.htm#Rothstein
[On the origins of the corporate judiciary and judicial arbitrage]
"The first chapter starts with the phrase, startling to today's ear, "Legalized race-based slavery," as if to introduce the reader from the outset to the most infamous example of judicial fallibility. For the next one hundred pages or so, Purcell's exposition of the federal bench is barely less severe. As workers increasingly looked to state and even federal regulators for workplace protections, legislatures, fueled by the Progressive movement, were highly responsive. In many cases, however, standing between the generally disadvantaged and often immigrant workers and the laws and regulations designed to protect them were the federal courts. As Purcell points out, the federal bench, drawn almost exclusively from the elite corporate bar, was extremely protective of national corporations. Federal courts routinely used injunctions to force striking laborers back to work, declared that state agencies' attempts to set rates for common carriers and public utilities were takings under the Fifth and Fourteenth Amendments, and ruled that laws banning yellow-dog contracts were prohibited under the Constitution's Contracts Clause. During this time, the Supreme Court was increasing both the scope of its authority and the tools available to imprint its conservative, pro-business values on the national political landscape.
Perhaps the federal courts' most effective tool was the expansion of diversity jurisdiction. Purcell convincingly points out that diversity jurisdiction, created by the first Congress in the Judiciary Act of 1789, had evolved to favor national corporate defendants. Corporate defendants could force local plaintiffs seeking tort damages into federal courts often hundreds of miles away. Resourceful and highly paid defense attorneys could manipulate their clients' options through the practice of forum-shopping.
But the ultimate support enabling the federal courts to exercise their authority to favor national corporations came from the 1842 case of Swift v. Tyson, which Purcell sets up as the Plessy v. Ferguson (1896) of diversity jurisdiction. Swift had held that federal courts sitting in diversity could develop and apply their own federal common law to substantive questions of "general," as opposed to "local," law. The distinction between "general" and "local" remained vague. Federal courts took advantage of this fuzzy line to appropriate control over a significant amount of disputable territory. The case thereby allowed the federal courts, populated by elite judges drawn from law firms with little grounding in the harsh realities of working life, essentially to adjudicate questions of labor conditions, workplace tort law, and matters affecting the working class, sometimes even on matters as to which Progressive state legislatures arguably had already spoken. Swift added insult to diversity jurisdiction injury, allowing judges to operate under the rubric of "federal common law" and the corporate defendants to benefit from the socio-economic biases of their brethren on the bench. State courts, with their popularly elected judges, were more closely associated with the Progressive movement and the working class than federal courts. Plaintiffs suing corporate defendants rarely could take advantage of state forums, however, because actions filed in state court were usually removed. Not only did diversity jurisdiction place an administrative and procedural burden on working class plaintiffs, but also through the development of the federal common law it imposed a substantive legal barrier to relief. [snip]