Towards A Good Samaritan World

Friday, July 01, 2005


Sandra Day O'Connor's retirement is great news. I'm not a lawyer, but my impression is that she was not very smart, and had an extremely arrogant view of the role of the judiciary, but that since was a "swing vote," i.e. unprincipled and manipulable, lawyers constantly flattered her hoping to win her over, which made the problem worse. Good riddance.

UPDATE: Nato thinks that this is too harsh for a mere "impression." Hehe. All right, maybe so, but let me add that the impression was formed under the influence of my father, a law professor, who on a few occasions during long car drives has gone on long, exasperated tirades against O'Connor's jurisprudence. I was channeling him, but you can take my view with a grain of salt, since I heard extensive arguments and evidence in its favor from my dad, but you didn't.

I'm less inclined to opine on the Court than on other topics, and one excuse I offer is "I'm not a lawyer." That's partly ironic. Constitutional law seems like an intellectual quagmire to me. The only school of Constitutional interpretation which is based on a plausible theory of meaning is originalism. The idea of a "living Constitution" is as dishonest as a kid who, upon being given $20 to go to the store and buy milk and eggs, instead spends the money at the video arcade and on candy bars, and, upon returning home, tells his mother that he saw her instructions as "living instructions," whose meaning could change with time. And the Constitution, in its original meaning, intended to establish a state far more (in some respects) (what would be called today) libertarian and (in other respects) (what would be called today) conservative than we have. Franklin D. Roosevelt dragged the country off the Constitutional straight and narrow, and ever since there's been a sharp divergence between our Constitution and our polity. But what can you do about it? Even if we could appoint nine libertarians to the Supreme Court and strike down the New Deal and most of what came after, would we want to? What legitimacy would there be in that? Why should a flourishing democracy of 300 million people, people who are broadly speaking rich, well-educated and free, be bound to be abide by an eighteenth-century document, anyway, and that document written by many slaveholders, at a time when the country was far poorer, less populous, and less educated than today? If nine justices were to carry out a revolution from above in the name of that document, what kind of legitimacy would that revolution have? We the people continue to venerate the Constitution, of course, but we also believe, falsely, that it establishes and guides the polity we live in. Our reverence for the Constitution is linked to our reverence for our country and its institutions. If we had to choose between the Constitution and the New Deal, which would we pick? Some people, probably a bit fewer than the share who voted for Goldwater in 1964, would pick the Constitution. Democrats and liberals, and people who like receiving Social Security checks or farm subsidies etc., would go with the New Deal.

The Supreme Court Justices have to help us evade that choice. It's like building an edifice on a foundation that has been shattered by an earthquake, while pretending that the foundation is sound. I don't envy them.


  • That assessment is awfully uncharitable for a mere impression. The only Supreme Court Justice I've ever heard described as less than brilliant is Thomas, and in that case it's simply surmize from the fact that he doesn't edgage the other judges in traditional debate, instead typically arriving to meetings already decided.

    Also, how does one distinguish between manipulable and independent? Both can be swing votes.

    To be honest, such a harsh judgement made apparently off the cuff doesn't seem appropriate.

    By Blogger Nato, at 6:09 PM  

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