>>> nathan at newman.org 05/16/01 03:20PM >>>
----- Original Message -----
From: "Charles Brown" <CharlesB at CNCL.ci.detroit.mi.us>
>On balance, though I agree with your (new?) emphasis on not relying on
courts, when something does go to >the Supreme Court or other court, I don't
favor a general theory of "vote the wrong way so that the >progressive
movement will unify or energize against the bad court result ".
I don't advocate voting the "wrong" way- I advocate courts just upholding laws as constitutional unless there is a compelling reason to overturn them based on explicit provisions in the Constitution, especially the Bill of Rights.
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CB: I thought you were saying that it might have been a better tactic for the liberal justices to vote against the right to an abortion in _Roe_, but not based on voting that way as "upholding laws as constitutional ( or in that case not finding a law unconstitutional) unless there is a compelling reason ...etc.", but as a pragmatic tactic.
Most important political court decisions have a colorable argument for a progressive decision. In other words, Take a look at John Mage's reply to Justin regarding "close" cases. Many legal decisions can go either way based on what is on the face of the statute or Constitution. Certainly this is true in cases with dissents. The dissenters always give a legally colorable argument. Given that the legal reasoning can go either way, the decision can be made based on good politics.
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I don't believe that courts will over time deliver better results on most issues than legislatures, so why vest power in them, since that power is far more likely to be used against progressives. And even if we quietly cheer decent results when delivered by the courts, we should publicly denounce most judicial activism - we can pocket the good results without being cheerleaders for the judges.
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CB: Yes, I agree we should be more involved in MASS MOVEMENTS to make law by legislation. My main discussions on this list are anti-judicial and pro-legislative.
However in this regard ,I have been wanting to make a self-criticism and to mention a caveat: the legislatures, especially , Congress , and the legislative process, which includes the executive branch through the veto power and the proposals of law made by the executive, are the BOURGEOIS STATE POWER TOO . It is not like the masses control the legislatures and Congress. So, the escape to legislatures, implied by default in my own anti-judicial comments, is not there.
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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.
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CB: I generally agree. I was a national VP of the NLG several years ago, and I was a bit more radical than the average in the org, but NLG is still a very fine bar org. ( I don't mean to imply you don't agree).
There is really no solution except to criticize and radically change all three branches of the system.