judicial tyranny

LeoCasey at aol.com LeoCasey at aol.com
Fri May 18 11:05:33 PDT 2001

I have come to value Chuck's voice as an exceptional thoughtful contribution to the LBO-Talk conversation, and the posting reproduced below reminds me why. I think that the nexus of politics and law, power and principle, is at the core of a lot of the issues we have been discussing in this thread, and I would like to return to it, using some of Chuck's points to reflect on the ongoing debate.

Although the discussion has tended to assimilate the positions of Nathan and Justin, the further we go on, the more I see important differences in trajectory. It strikes me that Nathan, in his complete hostility to what he calls "judicial activism" and now in his denunciations of the Supreme Court as the most reactionary institution in American political history [at which point, I have to ask myself, more than a pre-Civil War Senate dominated by slaveowning Southerners?] is implicitly adopting a position on behalf of legislative supremacy, a system of complete parliamentary rule. His position is, at the very least, strongly distrustful of a written constitution that binds the power of the legislature [for it can only bind the legislature if it has a system of checks and balances with a judicial branch that has the power to strike down laws and executive branch acts as unconstitutional]. In this, Nathan's position runs counter to the trend in parliamentary systems, as the Canadians have adopted a Bill of Rights, interpreted by a supreme court with the power of judicial review, upon the repatriation of their Constitution [and quite successfully, as even the Canadian left nationalists of my acquaintance no longer speak with fear and trepidation of creeping American constitutionalism], and even the British, the mother of all parliamentary democracies, have discussed more and more the possibility of some similar arrangement.

The debate between written constitution/checks and balances models of democracy and legislative supremacy/parliamentary government models of democracy have, since their classic origins, focused on what they believed was the primary danger within and to democratic goverrnment. The advocates of a written constitution and a system of checks and balances have focused their attention on the danger of a tyranny of the majority, as represented by the legislature, while the advocates of a system of legislative supremacy have focused their attention on the dangers of a tyranny of the minority, the judiciary or the executive branch [hence the title of this thread]. Although there is little question that the framers of the US Constitution were concerned about the tyranny of the majority framed in terms of socio-economic classes -- the majority of farmers and artisans versus merchants and slave plantation oweners -- it can also be just as easily framed in terms of the classic issue of American power, the racial oppression of people of African descent, indigenous Americans and of other people of color. It can also be framed in terms of issues of sexual minorities, such as gay men and lesbians, and in terms of political minorities.

The argument for legislative supremacy is, historically, one that refuses the distinction between law and politics. All that involves law is politics, legislative supremacists maintain, and so it is best to have the final word on all questions of law with the legislature, which is elected by and answerable to the people, as opposed to the judiciary, which is an unelected, unaccountable minority elite. Who better to interpret the meaning of the law than those who make it, they ask. And the problem that American federalism poses for advocates of judicial restraint conceived as deference to legislative action -- which legislature should one defer to, the national or the state -- is completely absent in the pure parliamentary system, where local government exists purely at the sufferance of the parliament. [Remember how Margaret Thatcher wiped out the Greater London and other metropolitan levels of government with a simple act of parliament when Ken Livingston and others got under her skin.]

This is most definitely the direction of Nathan's argument, reflecting his preoccupation with a tyranny of the judicial minority, even if he wants to stop a little short of the ultimate logical conclusion by allowing a 'Bill of Rights' exception to the rule of legislative supremacy. It is the logical corollary to the 'Supreme Court -- even the Warren Court -- is the enemy' line he has taken in these threads. The political watchword is: Restrict, as much as possible, the reach and the terrain of the judiciary.

As I read Justin, by contrast, as much more concerned with the professional rigor of how the court decides on the cases that come before it. There is an overlap between his position and Nathan's, but they are making different cases. Justin's position is much more concerned with separating law from politics, with instituting and maintaining a rule of law in which the judiciary strives toward what Chuck correctly defines as a sort of regulative ideal, a fidelity to the system of consistently applied rules, regardless of political belief. To accept anything else, he claims with considerable justification, is to allow for extraordinary arbitrariness, for the unaccountable imposition of the political beliefs of the justices, for the exercise of raw, naked power.

Seen in the light of Chuck's suggestion that it is a regulative ideal, Justin's argument for conformity to a rigorous legal logic, a political impartiality of a sort [one does not decide what political result one wants, and work back from it, as the Supremes did in Bush v Gore] is not all that different, I believe, from the regulative ideal of other professions, such as journalists, scientific researchers, and educators. Where I differ with Justin is that I do not think that it is as easy to approach this regulative ideal as his posts seem, at times, to suggest. That does not mean that one should abandon the ideal, especially in the absence of any meaningful alternative. It is impossible to conceive of how a society could function within a notion of the 'rule of law' [a fundamentally democratic concept, I might add, in that it demands that both the governer and the governd conform to the same rules] if the law was simply anything a judge decided to construe from it. But by the same token, I look for some concession that the best that can be achieved, in practice, is the identification of some broad parameters of acceptability, prohibiting only clearly over the line instances of imperial judicial review.

> But it is this understanding of law which I find so problematic. Law is not,
> in practice, "consistent and free from self-contradiction."
> Leo Casey
> - --------
> I won't argue too strongly, except to say, Doug wanted a distinction
> between law and politics, and I provided one. It is a theoretical or ideal
> or philosophical distinction, not a concrete, empirical, or pragmatic one.
> In the ideal realm, law is supposed to be internally coherent or rational
> in order to make self-consistent interpretation possible. This goes to the
> uniformity of a code and its application. Since there is no higher
> authority, we use rational consistency in lieu of divine right or edicts
> issued from the committee of public safety---exactly in order to escape the
> abuses of tyranny.
> My primary reason for advancing this line of argument is probably too
> obscure.
> The basic argument against most of the current Supreme Court rulings is
> that we don't like them. But to use that kind of argument simply follows
> the same moralistic and political path as the Right and leads to the idea
> that the only thing the Left doesn't like about the Court is that is too
> Rightwing. Hence, Doug's question to the effect, what's the difference
> between politics and law?
> You have to come up with a different line of argument in order to step out
> of this lack of distinction. In an imaginary bill of impeachment
> (contemplated evidently within the National Lawyer's Guild) you can not
> charge that the Supreme Court justices were guilty of being Republican
> hacks. You have to articulate how they are bad judges. It seems to me, they
> engaged in the arbitrary selection of law,
> precedent, and principle assembled ad hoc to expedite some narrowly focused
> result that directly benefited themselves---and frustrated and denied the
> explicit vote of the majority of the people. That seems to me to be the
> very definition of a bad judge. Not only do they contravene the will of the
> people, but they benefit themselves at the expense of the people.
> So, this sort of argument seems to go more directly to foundational
> questions, than the line that says, we don't like their Rightwing opinions.
> Chuck Grimes

Leo Casey United Federation of Teachers 260 Park Avenue South New York, New York 10010-7272 (212-598-6869)

Power concedes nothing without a demand. It never has, and it never will. If there is no struggle, there is no progress. Those who profess to favor freedom, and yet deprecate agitation are men who want crops without plowing the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. -- Frederick Douglass --

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