> It is only at the
> strategic junctions when they are unfair because they succumb to political
> expediency. Therefore, you need to show me that at such strategic
> junctions, the US system was above political expediency - and that I am
> afraid would rather difficult to do.
In fact, impossible. This is precisely correct.
I knew well many of the lawyers (and the handful who are still alive I know to this day) who had to deal with the Federal Courts during the 1948-1954 McCarthy period, when the First Amendment was thrown out the window by the Federal judiciary one and all. As Victor Rabinowitz, who knows more about this than anyone, said - as far as resisting the nationwide political repression of the McCarthy period was concerned, the Federal judiciary were useless.
They know when they have to toe the line, and they do so. A good friend of mine tells the story of his first day clerking for the late Judge Vance (murdered because he was a good judge) & being given a drug importation case with the comment from his judge that "here we have what we call the 11th Circuit exception to the Fourth Amendment."
As the crits explained long ago, most all cases in the appellate courts and all cases in the Supremes are overdetermined. Multiple decisions for either side can be crafted in accordance with Justin's "internally consistent principles--the meaning of statutes and the constitutional language,[and]respect for precedent."
Thus when Justin says in reference to medical marijuana "[f]or what it is worth, I think the SCt's opinion is probably right in tracking Congress' intentions, although the 9C opinion that was overturned was a tolerable reading of the text" he is acknowledging that both opinions are OK by his "internally consistent principles" but refusing the clear conclusion - that the decision (including *his* decision as to what is "probably right") is therefore political.
john mage