Readers of The New Yorker learned something last week that conservatives have known for twenty years now: that far from being inadequate to the demands of serving as a Supreme Court Justice, Clarence Thomas is one of the greatest – I would argue THE greatest -intellects on the Court today. Jeffrey Toobin, one of The New Yorker’s reliable mouthpieces for the left, has finally observed that Justice Thomas has carved out several areas of Constitutional Law as his own, taken consistent positions on them and has gradually won over a majority of the Court on these positions.
Commentators on the right wonder why Toobin has delivered this tribute. Certainly, Thomas hasn’t moved left, which is the usual reason someone on the left suddenly recognizes the intellectual heft of a conservative they have previously derided as substandard. Nor has Toobin moved right; indeed the purpose of the article is to attack Thomas for leading the way on the presumably pending rejection of Obamacare by the Court.
Some conservatives, such as Mark Steyn, are arguing that Toobin is creating a scapegoat for the Court’s anticipated decision and that Thomas, who will no doubt be leading the debate, can then be subject to another “high tech lynching.” I prefer a more hopeful view: that liberals are starting to realize that you can’t fight ideas with nothing but “raw judicial power.” For years now, they have nominated justices who are not necessarily intelligent, but safe votes for the liberal position on issues. Indeed, not since Justices Felix Frankfurter and Byron White showed themselves to be believers in judicial restraint has the left suffered from a rightward drift in an appointee the way the right has suffered from appointments such as Justice Souter.
But Thomas shows the power of ideas and I find that to be an extraordinary cause for hope, not for conservatism necessarily, but certainly for the fate of liberalism, the law and the country. The phrase “raw judicial power,” which I quote above, comes from Justice White in his dissent on in Roe vs. Wade, which overturned abortion laws and was supposed to settle the issue once and for all. But of course it didn’t.
It didn’t settle the issue because a fiat from nine old men is not a substitute for the democratic process. An intelligent, well reasoned rationale is the only reason a judicial decision deserves credibility when it overrules the right of people to choose the rules by which they are governed. In a healthy democracy, if a political decision is made in an undemocratic fashion, the people will not accept it. What makes a judicial decision, which of necessity is decided in an undemocratic fashion, acceptable is when there is an intelligent rationale for the decision. But Roe vs. Wade has no such rationale, which is especially necessary for a decision which results in changes as sweeping as Roe vs. Wade’s were.
The reasoning of Roe’s author, Justice Harry Blackmun, has the sort of superficial appeal of which lawyers are fond but which has little connection to real life. He noted that in the first trimester, the fetus is not “viable” outside of the mother’s womb. It is, therefore, he felt, no more entitled to Constitutional protection than, say, a parasite. Similarly, in the last trimester, the fetus is capable of surviving outside of the mother and therefore is protected. The status of the fetus in the middle trimester is a bit fuzzy, Justice Blackmun thought, so in this period, abortion is subject to reasonable regulations.
The problem with Justice Blackmun’s concept is that it is frozen in time as of the year in which it was written. Most litigators – and litigators are the ones who generally find their way to the bench – live in the past. They argue about the who, what, when, where and why of an event that has already occurred. They live the lives of historians, sifting through old papers, questioning fading memories, studying old data in order to find justice for their client. They are not in the business of predicting the future and, in my experience, are quite bad at it. They are far less capable of foresight and thinking two steps ahead than a taxi driver negotiating rush hour traffic.
Justice Blackmun’s opinion relied on the state of scientific knowledge as of 1973. Great strides have been taken since then, so now a fetus is “viable” mere weeks after conception and, given the forward momentum of medical science, it is conceivable that viability will soon be almost simultaneous with conception. That would turn the reasoning of Roe vs. Wade on its head and make the opinion a Constitutional prohibition of abortion, because if the rights of a fetus depends on its viability outside of the womb, every triumph of medical science expands the rights of the fetus and narrows the woman’s right to an abortion. Roe vs. Wade is one man’s flawed attempt to define when human life begins and the guidance he offered is increasingly flawed.
In their heart of hearts, pro-choice lawyers recognize the flaws in the opinion and, indeed, the rationale of the Roe opinion has been almost totally ignored since it was issued. But there is no guiding principle to replace Blackmun’s flawed reasoning either. The result is the creation of a vast, and perhaps permanent, intellectual vacuum in the law.
We also have the side effect of masses of people who have taken their opinions to the street because the political forum has been foreclosed to them by the Court. If opinion polls are anything to go by, opponents of abortion are slowly moving opinion against abortion rights. Anyone with an inkling of human nature would have expected that. You don’t “settle” a political issue by sweeping objections under the rug and imposing your view by diktat. You settle the issues by honest debate, by finding compromises and letting everyone be a little unhappy.
If abortion laws had been left to fifty state legislatures, as it should have been, each state’s laws would have reflected the social mores of the people living there. It would probably still be largely outlawed in the Bible Belt and considerably more available in the northeastern and Pacific areas of the United States. More importantly, though, everyone would have reached a local compromise that they could live with. It would not be pretty, it would not be rational, but it would have been democracy. If you can’t provide a logical explanation for a ruling, based on universally accepted concepts (even if the application of those concepts is subject to disagreement), it is incumbent on the judicial system to surrender the issue to the messier democratic process, which has the virtue of giving a much larger forum for competing points of view to be heard.
The Supreme Court is no longer perceived by many Americans to be an institution of intellectual discourse. It is thought to be a sort of superlegislature, where the result is what counts and not the reasoning the Court used to reach the decision. The ends are not supposed to justify the means in a democratic society. This separation of power from process and principle has not only replaced the Court’s moral and intellectual authority with mere political power, but it has also led to an unhealthy paranoia on the left, which projects its own behavior onto that of its opponents.
Ironically, Justice Blackmun had been subject to charges by leftwing critics of being an intellectual lightweight, but the very case which proved them correct also made him a liberal icon. Intelligence ceased to be a requirement to the left. That they now recognize the intelligence of a conservative jurist who has been unfairly maligned by them for twenty years is therefore a cause for celebration by everyone.
Thomas F. Berner
www.WeThePeopleBlog.net
comments@wethepeopleblog.net
Showing posts with label LEGAL. Show all posts
Showing posts with label LEGAL. Show all posts
Sunday, September 11, 2011
Friday, May 27, 2011
Legal Follies Part I by Thomas F. Berner
This week, the Supreme Court’s ordered the release of tens of thousands of felons held in California jails this week because prisons didn’t have in-house medical staff, but relied on neighborhood doctors to care for sick prisoners. To commemorate that boneheaded decision, I am launching a new series on previous Supreme Court decisions which illustrate just how inadequate the legal mind is when it makes sweeping policy decisions.
Let’s start with a decision which, like many sweeping Supreme Court decisions, has a superficial appeal but looks worse the more you “get granular” as business people say. It also has a long term effect, usually deleterious, which only the most astute are able to predict This is because lawyers, particularly litigators, from whom most of our judges are chosen, is a profession that by its nature lives primarily in the past.
When one is in court, the issues are almost always historical ones. What happened to whom, when, where and why? One defends or prosecutes in an attempt to mete out responsibility for an act that has already happened. This makes lawyers able historians, but, unfortunately, very poor prognosticators.
The case I have in mind was called Baker vs. Carr, a 1964 Supreme Court case, which held that states would have to allocate legislative seats on the basis of “one man, one vote.” Until then, most States (except for Nebraska which is unique in having a unicameral legislature) had a lower house in which seats were allocated on the basis of population and a Senate, an upper house, which was often allocated on the basis of political subdivisions in the state. Typically, each county would have a single State Senator and State Representatives based on the number of people living in the county. The result was that most states which had any sort of a rural area had a bias among its upper house favoring rural interests, since farmland dominated the land mass of most states, even though the growth of cities had outstripped the population growth of rural America.
Baker vs. Carr changed all that. By a vote of 8-1, the Court ruled that the Constitution mandates the concept of “one man, one vote,” i.e., that all legislative seats must be allocated in the same manner as the House of Representatives is allocated, i.e., after each census, the state must divide the state’s population into the number of seats in each house of its legislature and divide voting precincts as carefully as possible to ensure that each seat represents approximately the same number of people.
At first glance, nothing could seem more fair than the Court’s ruling. Most decisions relying on votes embody some form of “one man one vote” as a basic sense of fairness, whether it is the board of directors of a corporation voting on a new business venture, children in a playground voting on the next game they’ll play or a vote on the Federal budget, the idea seems to be embodied in the idea of democracy itself.
But on reflection (something which seemed to be beyond the ability of eight members of the Court in 1964), there is something a little odd about the decision. For one thing, the Constitution itself repudiated the idea of “one man, one vote” when it created a House of Representatives allocated according to population, but a Senate allocated on the basis on two to a state, whether the state has half a million people or less, like Wyoming, or forty million or more like California. To say that the Constitution mandates the concept of “one man, one vote” is to argue that the Constitution is itself unconstitutional, an obvious absurdity.
What the majority of the Court was trying to accomplish in their sub rosa way was to strengthen the urban centers of America, which they perceived as in need of more political largesse than they were currently receiving. Perhaps too, they thought of their ruling as a means to assist the civil rights movement, since African Americans were in the process of moving into cities and by increasing the representation of the cities, they were creating more legislative seats for the underprivileged.
As a practical matter, they achieved neither goal, instead increasing the power of suburbs at the expense of both rural and urban America. The rural legislators had only a single interest to defend: the farmers in their district. Farmers were always a politically astute bunch who followed the news from the state capital as carefully as they followed the weather reports, so any legislator who voted against their interests sacrificed his political career. As a result, the family farm was still a force to be recognized. Thousands of tweaks to state legislation were necessary to protect the interests of farmers because such legislation would otherwise be “bottled up in the state Senate.” Most of these tweaks did not involve subsidies or massive costs to the state, just simple matters of easing the laws to allow farmers cooperatives or discouraging the urban sprawl that was beginning to appear in rural areas near big cities.
This powerful block did not appeal to many politicians (“FFN” or “F*ck the Farmers after November” as John F. Kennedy used to joke after campaign swings through rural America), but it kept food cheap and local, creating greenswards near major metropolitan areas and providing a happy way of life to millions of Americans. As someone who spent much of his childhood in rural districts of America, I can attest that there were as many happy farmers as there are unhappy lawyers, which is to say, the vast majority of them. Rural America was also more frugal in their spending habits, forcing states to operate efficiently.
But throughout the sixties and the seventies, the urban interests lost their natural sparring partner and rural interests were gradually chipped away. The newly empowered urban legislators did not create a new Eden for cities, however. Instead, since their voters were less one track minded, they could push the interests of real estate developers who converted rural areas into ex-urbs and ex-urbs into suburbs. By the mid-seventies and into the eighties, the family farm died a slow death, its only epitaph a spate of unsuccessful Hollywood movies.
Today, any state with a large urban area, such as Pennsylvania or New York, has an area of urban sprawl and vast areas of underutilized farmland. We still produce a lot of food, but agriculture is dominated by corporate farms and our largely tasteless, genetically modified food is shipped in from other parts of the country. Any family farms are in those states where there are no urban centers or where “family farm” is a bit of a misnomer, involving thousands of acres owned by a single wealthy individual, where the farming is largely performed, not by a yeoman class of independent land owning individuals, but by a work for hire underclass one step above tenant farmers.
Baker slammed through rural America like General Sherman charging through Georgia, leaving behind the ruins of what was once a vibrant way of life. The price we have paid in denying working class Americans independence, in destroying what was once a strong local culture, in altering the way we get our food, in stripping rural areas of its wealth is enormous.
Meanwhile, urban centers have not done any better. They changed from lively, prosperous centers of culture to troubled blighted areas and some of this may have been inevitable even before Baker, but this metamorphosis accelerated after Baker as major corporations took advantage of the projects of newly liberated real estate developers to move out of cities into suburban corporate parks. Today, there are only three kinds of cities: a handful of real cities like New York and Chicago which have survived because of their position as an international, national or regional center, many cities like Houston or Los Angeles which are suburban sprawls in all but name and dead cities like Newark and Detroit. Ask anyone who lived near Newark or Detroit in the early sixties and they will describe an urban area which is a different world.
Amazingly, there actually was a member of the Supreme Court who foresaw all this. Justice John Marshall Harlan, one of the great Supreme Court Justices of all time predicted exactly what would happen, noting that it is not just people who are represented in a legislation, but ways of life, nature, and other abstract notions that make the world a better place. Track down Justice Harlan’s dissent to Baker vs. Carr if you want to read the work of a master at the top of his craft. Then read the majority opinion and ask yourself if these really were the best and the brightest of American jurisprudence.
Maybe it’s significant that Justice Harlan is the only modern Supreme Court Justice who was not educated in an American law school, having gotten his legal training in the United Kingdom.
Thomas F. Berner
www.WeThePeopleBlog.net
comments@wethepeopleblog.net
Let’s start with a decision which, like many sweeping Supreme Court decisions, has a superficial appeal but looks worse the more you “get granular” as business people say. It also has a long term effect, usually deleterious, which only the most astute are able to predict This is because lawyers, particularly litigators, from whom most of our judges are chosen, is a profession that by its nature lives primarily in the past.
When one is in court, the issues are almost always historical ones. What happened to whom, when, where and why? One defends or prosecutes in an attempt to mete out responsibility for an act that has already happened. This makes lawyers able historians, but, unfortunately, very poor prognosticators.
The case I have in mind was called Baker vs. Carr, a 1964 Supreme Court case, which held that states would have to allocate legislative seats on the basis of “one man, one vote.” Until then, most States (except for Nebraska which is unique in having a unicameral legislature) had a lower house in which seats were allocated on the basis of population and a Senate, an upper house, which was often allocated on the basis of political subdivisions in the state. Typically, each county would have a single State Senator and State Representatives based on the number of people living in the county. The result was that most states which had any sort of a rural area had a bias among its upper house favoring rural interests, since farmland dominated the land mass of most states, even though the growth of cities had outstripped the population growth of rural America.
Baker vs. Carr changed all that. By a vote of 8-1, the Court ruled that the Constitution mandates the concept of “one man, one vote,” i.e., that all legislative seats must be allocated in the same manner as the House of Representatives is allocated, i.e., after each census, the state must divide the state’s population into the number of seats in each house of its legislature and divide voting precincts as carefully as possible to ensure that each seat represents approximately the same number of people.
At first glance, nothing could seem more fair than the Court’s ruling. Most decisions relying on votes embody some form of “one man one vote” as a basic sense of fairness, whether it is the board of directors of a corporation voting on a new business venture, children in a playground voting on the next game they’ll play or a vote on the Federal budget, the idea seems to be embodied in the idea of democracy itself.
But on reflection (something which seemed to be beyond the ability of eight members of the Court in 1964), there is something a little odd about the decision. For one thing, the Constitution itself repudiated the idea of “one man, one vote” when it created a House of Representatives allocated according to population, but a Senate allocated on the basis on two to a state, whether the state has half a million people or less, like Wyoming, or forty million or more like California. To say that the Constitution mandates the concept of “one man, one vote” is to argue that the Constitution is itself unconstitutional, an obvious absurdity.
What the majority of the Court was trying to accomplish in their sub rosa way was to strengthen the urban centers of America, which they perceived as in need of more political largesse than they were currently receiving. Perhaps too, they thought of their ruling as a means to assist the civil rights movement, since African Americans were in the process of moving into cities and by increasing the representation of the cities, they were creating more legislative seats for the underprivileged.
As a practical matter, they achieved neither goal, instead increasing the power of suburbs at the expense of both rural and urban America. The rural legislators had only a single interest to defend: the farmers in their district. Farmers were always a politically astute bunch who followed the news from the state capital as carefully as they followed the weather reports, so any legislator who voted against their interests sacrificed his political career. As a result, the family farm was still a force to be recognized. Thousands of tweaks to state legislation were necessary to protect the interests of farmers because such legislation would otherwise be “bottled up in the state Senate.” Most of these tweaks did not involve subsidies or massive costs to the state, just simple matters of easing the laws to allow farmers cooperatives or discouraging the urban sprawl that was beginning to appear in rural areas near big cities.
This powerful block did not appeal to many politicians (“FFN” or “F*ck the Farmers after November” as John F. Kennedy used to joke after campaign swings through rural America), but it kept food cheap and local, creating greenswards near major metropolitan areas and providing a happy way of life to millions of Americans. As someone who spent much of his childhood in rural districts of America, I can attest that there were as many happy farmers as there are unhappy lawyers, which is to say, the vast majority of them. Rural America was also more frugal in their spending habits, forcing states to operate efficiently.
But throughout the sixties and the seventies, the urban interests lost their natural sparring partner and rural interests were gradually chipped away. The newly empowered urban legislators did not create a new Eden for cities, however. Instead, since their voters were less one track minded, they could push the interests of real estate developers who converted rural areas into ex-urbs and ex-urbs into suburbs. By the mid-seventies and into the eighties, the family farm died a slow death, its only epitaph a spate of unsuccessful Hollywood movies.
Today, any state with a large urban area, such as Pennsylvania or New York, has an area of urban sprawl and vast areas of underutilized farmland. We still produce a lot of food, but agriculture is dominated by corporate farms and our largely tasteless, genetically modified food is shipped in from other parts of the country. Any family farms are in those states where there are no urban centers or where “family farm” is a bit of a misnomer, involving thousands of acres owned by a single wealthy individual, where the farming is largely performed, not by a yeoman class of independent land owning individuals, but by a work for hire underclass one step above tenant farmers.
Baker slammed through rural America like General Sherman charging through Georgia, leaving behind the ruins of what was once a vibrant way of life. The price we have paid in denying working class Americans independence, in destroying what was once a strong local culture, in altering the way we get our food, in stripping rural areas of its wealth is enormous.
Meanwhile, urban centers have not done any better. They changed from lively, prosperous centers of culture to troubled blighted areas and some of this may have been inevitable even before Baker, but this metamorphosis accelerated after Baker as major corporations took advantage of the projects of newly liberated real estate developers to move out of cities into suburban corporate parks. Today, there are only three kinds of cities: a handful of real cities like New York and Chicago which have survived because of their position as an international, national or regional center, many cities like Houston or Los Angeles which are suburban sprawls in all but name and dead cities like Newark and Detroit. Ask anyone who lived near Newark or Detroit in the early sixties and they will describe an urban area which is a different world.
Amazingly, there actually was a member of the Supreme Court who foresaw all this. Justice John Marshall Harlan, one of the great Supreme Court Justices of all time predicted exactly what would happen, noting that it is not just people who are represented in a legislation, but ways of life, nature, and other abstract notions that make the world a better place. Track down Justice Harlan’s dissent to Baker vs. Carr if you want to read the work of a master at the top of his craft. Then read the majority opinion and ask yourself if these really were the best and the brightest of American jurisprudence.
Maybe it’s significant that Justice Harlan is the only modern Supreme Court Justice who was not educated in an American law school, having gotten his legal training in the United Kingdom.
Thomas F. Berner
www.WeThePeopleBlog.net
comments@wethepeopleblog.net
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