``My frustration is that progressives become defenders of the courts institutionally. I have actually been shocked that within the National Lawyers Guild during the debate on impeachment, the overwhelming majority of the leadership has declared that you can't impeach judges based on their decisions undermining civil rights, since that would undermine "judicial independence." When progressives think it is more important to defend the perogatives of the Rehnquist Court than to try to remove those fuckers by any means possible, I see the reactionary legacy of the leftover attachment to the Warren Court.'' -- Nathan Newman
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I want to make a different argument against the entire Court and its legal legitimacy. It is more of the kind of argument used in the 18th century against monarchies, but I think it has a sort of clarifying relevance. The issue is not entirely encompassed in the argument of judicial independence, but rather lays at the philosophical foundation of judicial independence.
The most profound violation of legal principle that the Supreme Court engaged in Bush v Gore was to rule in an arbitrary and capricious manner. This charge goes to many, if not most of the current Court's rulings.
The problem with the Court's decisions up to and including the Bush v Gore opinion is that these share no consistent legal principles or philosophy at all. The court's opinions are constructed ad hoc. In one opinion they claim a federalist position, in the next a state's rights position, and in another opinion some other position. They claim to follow judicial restraint, yet clearly extend their reach and intervention. So, which is it, restraint or activism, states rights or federalism? Bush v Gore then falls in line with an habitual lack of coherent legal position or analysis, and finally admits as much in writing.
The Court's opinions in Bush v Gore should set no precedent not because the issues involved were unprecedented. After all corrupt voting practices are a constant, structural, historical, and even a predictable problem with all representative forms of government. What was unprecedented was the entirely arbitrary nature of arguments used in the opinion itself.
The Court's opinion appears arbitrary because the justices have proceeded from extra legal rationales such as their own personal values, political preferences, and even their career retirement plans. And, most importantly, they have failed to mediate or develop these motives and positions within any self-consistent legal argument or principle.
In short, their raw and unadorned personal motives, political preferences and individual will have become law. And that, is the very definition of tyranny.
This concept of tyranny, that of rule under arbitrary will, is precisely what constitutionally founded national states with their divisions of powers, and elected representatives were constructed to combat---the arbitrary will of the sovereign. To engage in this practice is to abolished the social contract.
With the Bush v Gore opinion the Court abolished its own constitutive legal foundations and it is merely the most gross example of what Justin cites as lawless law: ``...I try real hard not [to] just make it up and impose my policy preferences, and so does my judge.''
And yet that is exactly what characterizes most of the Supreme Court's opinions; the mere imposition of policy preference and the arbitrary selection of law, precedent, and principle assembled ad hoc to expedite some narrowly focused result.
I think its important to consider the philosophical issues involved here. Since ultimately law is an arbitrary set of axioms for the construction and conduct of society, it has no higher justification or authority. The rule by divine right was abolished in both the US war of independence and the French revolution. Therefore the legal system as part of the social contract was adopted ex nihilo with various acknowledgments to custom, history, and tradition. This is the concrete basis for the constitution. In addition to various enlightenment philosophical justifications, it has become custom to substitute certain logical principles, in lieu of some external and overriding authority. Among those are the principle of self-consistency (precedence) and freedom from internal contradiction (constitutional and legislative interpretation).
So I would argue that the Supreme Court's opinion has violated these fundamental principles and has therefore abolished its own legal standing. Since the result of that decision was to install a candidate defeated in popular vote to the executive branch, it seems to me, that the entire executive branch also has no standing.
Justin, ``This isn't politics. It's law.''
Doug, ``Fascinating distinction.''
The distinction is that law as a rational system is under a specific rule to be both consistent and free from self-contradiction. Politics is under no such proscription.
Chuck Grimes