You Say Potato, I say Reactionary Bastion...

The Volokh Conspiracy is engaged in a healthy debate regarding judicial activism and whether both sides of the political spectrum are a bit too willing to let their judges enforce whatever decree they like. I think his "justice" vs. "rule of law" as the divide between liberal and conservative activists is a tad arbitrary, but he probably doesn't want to be so cynical as to say that both sides will throw away all constitutional ideals in the simple name of the issue of the day.

Given how much the Baby-Boomers and subsequent generations have been influenced by the Warren Court, from Brown to Roe, I think most people assume "liberal" when they think about the Supreme Court and its constitutional interventions. Which is absurd. From the establishment of Judicial Review, to Dred Scott, to striking down max. hour laws in the name of "free contract penumbra of the 15th amendment" to its silence during the McCarthy era, the courts have usually been a very strong conservative influence. Which makes sense given how justices are appointed; what's moderate when appointed tends to become conservative thirty years down the line when they are still on the bench. Only the incredible effect of the Warren Court has made us ignore that the Rheinquist Court is in fact closer to the trend of Supreme Courts, and a Scalia Court would still be not uncommon.

Just some thoughts for any liberal who would trust their rights and laws to this branch, rather than democratic accountability.

Somedays, I Just Don't Know Where to Start...

Such as this piece at DailyKos about how Democrats should push harder in House elections because of the Presidential election. See, if the electoral votes for President are tied, then the House decides, with one vote to each state which are decided by the delegation of representatives.

I think I said that cleary. I mean, besides just the regular problems of the electoral college, why the heck do we bring this decision making scheme into it? Are we still as concerned about state sovereignty as the Framers were so that we want this complicated compromise helping judge who we elect? And this whacked out system isn't just law, it's superlaw, meaning overturning it would be nigh impossible.

Of course in this case, it's just something random that favors conservatives / rural states and not an overall evil. But how can anyone act like we are proud of this system and that the delicate compromises worked out two hundred years ago are still adequate today?

Representation Hardly Represents

Even in the most democratic of our federal institutions, we hardly get the democratic choices that truly represent us.

DailyKos confirms that Rep. L. Alexander (D-LA) has resisted GOP efforts to draw him to their "dark side". He only won by 52%, while Bush took the rural southern district by 57%, and the GOP congressman in 2000 took it by 69%. Not to mention how often we hear complaints about Zell Miller or John Breaux, some very conservative Democratic Senators, down there. But Democrats are happy to keep them, as long as they make their party-line votes for Speaker, or not impeaching a Democratic politician., or investigating a Republican politician. And Republicans like Arlen Specter are just the same way.

Since these "oxymembers" have incumbency advantage, more likely to be towards the center of their district than their opponents, and are likely to get tons of campaign finance because they are in a "swing district" they continue to trounce members who would much better represent their district. I mean, if the House of Representatives has problems with not enough districts being competitive anyway, couldn't those solid districts at least represent the correct party?!

Judicial Fiat, or to Amend?

Oooh, oooh, which process should we be using to fundamentally define marriage? Various obviously biased courts, local bureaucrats acting completely but imperviously outside the law, or a very arbitrary, complicated, and far-reaching process for Constitutional amendment that will be nigh-impossible to change 30 years from now?

I mean, I really feel for conservatives like at RightWingNews who want to bring some democracy into at least a little of this. But why do the same people who scream about how loosely we interpret the religious-establishment clause feel so comfortable about making more of these broad strokes?

If we just had simple vote to determine this, there wouldn't be nearly as many problems. Instead, no matter how the gay marriage debate turns out, look forward to years of court cases, struck down laws, angry pundits, and a disenfranchised majority.

So Which is it Guys?

Is stereotypical liberal rights defending in the courts and "judicial activism" balanced out by right wing legal enthusiasm?

So is this how staunch advocacy makes sure that the rules are scrupulously followed, or is it a source of random right-left action taken that always upsets the country, makes their causes look bad, and of course costs the government a lot of money?

PS: Sorry for the registration at the LAtimes. At least it's free.

Not an Aristocracy at all...

SCOTUSblog is doing a wonderful job as all the papers from late Supreme Court Justive Blackmun come out. Some of them are amusing and insightful, but I find them somewhat scary. The amount of politicking that went into some decisions, and even in how to "handle" some justices, does not seem to hold with the idea of this being a purely interpretative body that coldy reads the law as it stands. On one hand, they announce the final verdict on any matter they choose, on the other they relegate one of their own to irrelevancy without bothering to try to appoint anyone new.

Of course this is therefore more interesting and fun for polisci professional students to wank on, but hardly what you want in an all powerful group four steps removed from any democratic accountability.