Justices Kennedy and Thomas testified in front of Congress, another one of the periodic appearances to discuss Supreme Court related issues. These hearings tend to be for mundane matters such as relatively small financial matters and so forth, but it gives members of Congress a chance to raise various basically non-germane issues, including the number of minority law clerks. This time around the criticisms of the Court's decisions were referenced, leading one justice to note that one reason why federal judges have life tenure is to handle such things. True enough ... the Framers expected the courts would be targeted, and placed certain safeguards in the Constitution to deal with the matter.
[NB a citation in a letter to the editor: As Justice Anthony M. Kennedy has said: "The law makes a promise - neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob."]
Not that we have little to fear from the anti-court rhetoric, Justice Kennedy being a prime target since he wrote the opinion striking down the execution of minors, one that made some (non-binding) reference to international law. He also is deemed a turncoat to the conservatives given his votes in support of abortion and gay rights. The critics have an important assist from House Majority Leader Tom DeLay, speaking about how various judges will "pay" for decisions certain individuals do not like. Not too surprisingly, these sorts rail against court activism quite selectively, not liking it when the courts show restraint (e.g. Terri Schiavo) only when the results are not to their liking.
We have an independent judiciary (and a judiciary overall, including those state judges that are elected) because of the importance of the rule of law, especially the securing of certain basic rights and principles that are deemed fundamental. But, top people in power -- including the leaders of two branches of the federal government -- appear not to be too happy with the principle. And, their supporters basically make it up as they go along.
Alexander Hamilton apparently said the courts should be the least dangerous branch -- not that they are the least dangerous branch. Republicans did not "filibuster" judicial nominees in the past, when they actually did. The current nominees are not in any fashion extreme, when they are. Various (named) liberal and moderate law professors said that the filibuster is unconstitutional, when they did not (as shown by looking at the selectively quoted materials or when asked directly). Removing Terri Schiavo's feeding tube clearly does not respect "life," when the matter is open to much (religiously laden) debate. And, selectively supporting religious doctrine and symbols is something the government should do, when the First Amendment (and basic fairness) warrants otherwise.
Not that the usual suspects are the only problem. Burt Neuborne, former national director of the ACLU, wrote a patently misleading Nation piece on how progressives should not be so much in love with the courts. The overall principle is sound: court action must be carefully balanced with other social and political movements. And, this has been done in each field, including abortion, race, and so forth, though sometimes not well enough.
But, then, he went into just plain wrong mode. And, the fact that Neuborne used the same old tired lines used by other side only makes it more aggravating. To wit:
The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins.First, weird wording. "Abortion" is not "fundamentally fair" -- if anything, the "right to choose" is. Second, the "opponents" often focus on simple "right to life" rhetoric that is far from complex. Third, progressives have pointed out the moral complexity -- it's a core reason why the choice should not be up to the state. Finally, not only do progressives also talk about equality and other issues, but overall the public agrees! A majority supports legalized abortion.*
Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.
This covers gay rights. First, he implies that the part of the gay rights community that have "immediately redoubled" their efforts to push for gay marriage in the courts speaks for the whole. Second, it is unclear if Neuborne is saying that the "opponents" are arguing that marriage is a "religion-based" institution or that it actually is. If the latter, this is false, unless city clerk offices also have traditionally been chapels. And to the degree it does promote a certain religious view of marriage, it is an establishment of religion. Fine way to add fuel to the fire.
Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it's fundamentally fair to do so.
First, I hope the guy knows that the "equal right to have the symbol of his or her choice" is really not present in practice. Second, and this pisses me off, it is patently false that these defenders (darn them for being so "relentless") are not trying to persuade the public that it is fair to challenge selective sponsorship. Equally wrong is the fact they are pressing to remove them from the public square totally. An obscure few are, but opposing Ten Commandment monuments is not quite the same as total removal.
Neuborne is yet another person unfairly maligning progressives, basically punishing the victim, for allegedly ignoring the values of their fellow Americans. Adding fuel to the fire of DeLay et. al. is not exactly what a "Professor of Law and Legal Director of the Brennan Center" should be doing. And, the comments about the religious symbols in particular really dishonors Justice Brennan's memory.
---
* This after all is a core reason some, and Neuborne implies that he might be among them, believes Roe can be overruled -- the public would still protect the underlining right. In fact, it would be likely that various weak and powerless groups (especially in certain regions) would be deprived the right to choose in troubling ways, but that's another issue.
As to the use of Justice Ginsburg's opposition, nice tired tactic. Two things. One, she still supports it on equal protection grounds. Two, her main point was that the movement should have been more deliberate. Sound advice, though the courts in the 1970s opposed de facto discrimination claims even on ground of race [a claim respecting pregnancy leave was rejected by the Supremes, leading to state and national legislation].
Also, the speed was as much a result of Supreme Court dynamics as progressive activism. Roe could have been decided on quite narrow grounds; it is not really the fault of Sarah Weddington and company that it was not. Supporting an after the fact rolling back would have been rather bad strategy with troubling implications in other areas.