I am beginning to think that I’m a social liberal but a judicial conservative, or at least not a judicial liberal. That is, I hold many viewpoints that today would be considered liberal (e.g. I support gay marriage, I am generally pro-choice on abortion), but I’m not completely comfortable with courts deciding these issues – even if I agree with the outcomes.
Roe v. Wade is a great example of a case that strengthened its opponents. So is Brown v. Board of Education; 10 years after Brown, most southern schools remained segregated, and the decision also led to a strong southern backlash against blacks. Roe and Brown were both morally correct decisions, but can anyone honestly argue that they were based on the text of the Constitution? (And Roe went into way too much trimester-by-trimester quasi-legislation.) As Nicholas Kristof wrote in the NY Times the other day, “court rulings can constitute fine justice and bad law.”
It’s a brain-versus-heart thing for me. Intellectually, I don’t like the idea of courts venturing into certain areas. The best way to accomplish social change is through legislation; when you rely exclusively on the courts, you bypass the dirty work of trying to convince society of your views, so you wind up with a good court decision and an angry populace. Not that social movements rely exclusively on the courts; they sometimes go to the courts only after the regular democratic process fails.
I guess I’d say that I’m ambivalent about what courts do with the Constitution. Sometimes I agree with what they do, and sometimes I don’t. And sometimes my view is that it’s a dirty job, but somebody’s got to do it.
Of course, hardly any of us are ideologically pure, not even those who claim to be. We’re all just human, after all, and our personal views can get in the way of our intellect. In the end, there are no ultimately right or wrong answers to these questions. In the end, there is no ultimate authority and we’re all dead. But it’s interesting to think about these things anyway.
I agree that courts’ opinions on controversial matters have always had legitimacy issues. However, do you think the fact that the Supreme Court may be about to make a hard turn to the right could inform your position?
I don’t think so, except that there might be more decisions in which I respect the legal reasoning but think the decision is a morally bad one.
Well said, well said.
I think this post is a bit too legalistic for me, Tin Man! And haven’t you forgotten something – the fact that the Supreme Court actually installed George W. Bush in the WH after Gore had got more than 500,000 votes than the Boy King? How did you feel about this decision at the time if I may ask?
Well, that was a shitty decision because it went completely against the law.
Is there a point when the Supreme Court could lose its legitimacy? What if the SC reverses Roe v Wade, decides that gays don’t deserve equal rights, etc. I’ve wondered about this often, worried that I might spend the rest of my life as a second-class American because of the Scalia/Thomas crowd.
Re: Bush v. Gore, the 500,000 votes is totally irrelevant. That’s a strawman. All that matters was Florida’s votes. And the recount was ugly, but keep in mind that under Gore’s requested recount, he would have lost. But whatver- my bigger issue is that the Florida Supreme Court (9 Democrats) was making incredibly partisan decisions that were probably wrong under Florida law in their effort to get Gore elected, and that’s been lost in history already. The case should never have gotten to the Supreme Court, but the Florida Supreme Court ignored Florida law and allowed things to happen that shouldn’t have happened. THAT forced the issue to the Supreme Court, giving us a bad FL decision followed by a bad SCOTUS decision.
Re: Brown v. Board, I think you can make an excellent constitutional case for that decision. I think that was well-decided.
Re: Roe… well, the trimesteral (is that a word?) parsing was ugly and the SCOTUS is going to have to revisit it at some point, if only because science/medicine have advanced. 80% of babies born at week 27 survive, and 50% of babies born at week 25 survive. So if nothing else, the third-trimester part of the ruling is going to come back to the SCOTUS at some point, providing an opening for the rest. And even the justices in the majority, in their private notes that have been released posthumously, have acknowledged they didn’t have a consitutional basis for the decision. So I’d rather see Roe overturned and thrown back to the states.
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So how was the Big Apple Blog Festival, A Guy in New York?
And FI, re the Florida recount what about those thugs in suits who were flown in from DC and other places and stopped a perfectly legitimate recount? And wouldn’t Gore have won Florida according to a recount organised by the NYT and other papers but whose results were then buried deep inside the paper in late 2001?