Thursday, January 26, 2006

Difficult Unravelings

One of the reasons it's so annoying to see political hay made out of legal decisions, is because legal arguments are very complicated and generally have a lot more going on that just the policy at hand.

For instance, the most recent SCOTUS ruling on federal action against the Oregonian referendum on assisted suicide. They struck down attempts at federal intervention (at least by the executive branch).

George Will decided to burnish his conservative-contrarian credentials by praising the "anti-pro-life" ruling as conservative. The SCOTUS decided to let the Oregon law stand, after all and bowed to democratic will.

The three dissenters—John Roberts and Clarence Thomas embracing Antonin Scalia's argument—favored striking down the law that Oregonians passed in a 1994 referendum and resoundingly reaffirmed by a 60 percent vote against a 1997 attempt to repeal it. The dissent by the three conservatives could be characterized as liberal—judicial activism favoring the federal government's aggrandizement of its power at the expense of federalism.

Except well, executive action counts as democratic will as well. The president was legally elected, and what the court actually did was overrule the actions the federal government wanted to take.*

The issue was a matter of competition between two democratic bodies, and the court was simply interpreting a congressional law as to decide who held precedence here, for now. Not some "activist" scenario pitting a clear democratic will and some arcane interpretation of the constitution. And in fact this is what high courts in every republic deal with every day, as these are very important issues.


1) Simply praising one side of the ruling or the other as "democratic" or "judicial activist" is myopic and simplistic. And thus such descriptions are largely based on partisan motivation.

2) We need to be appointing our justices on better things than their view of when life begins and ends.

*Yes, it could supposedly be viewed as a federal vs state issue then. Well the who judicial activism label isn't about deferring specifically to state authority. And more importantly, the court isn't choosing to say states get final say, but rather whether a Congressional law passed years ago gives the executive power to overrule states, taking into account the previous judicial and executive interpretations. As said previously, these things get really complicated.


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