Bloodless Coup

It's a good post. Does anyone have any opinions on when ths started? Obviously Bush v. Gore would seem key - in that the right was thrilled to accept the benefits of judicial activism and drum up perceptions of biased and out of order processes (while they practiced what they decried) as long as they got the political results they wanted. But ... does this really go all the way back past Roe to the desegregation and civil rights cases? If that's when it started ... how much of it do you think is purely political, and how much is self-delusion - saying these things so they don't have to acknowledge or deal with the substantive implications of their arguments.

Good questions, Armand. I suspect it began before Bush v. Gore: there has always been a strand of Republicans who have decried the power of the courts: Roe, Griswold (Griswald?), Desegregation (for the "red states") and integration. When the "activist judges" meme got going I'm not so clear on. I think I remember arguments about this from the 1990s (but not the 1980s), but I'm unclear what issues this revolved around.

I think this is part of the long-term "what's the matter with Kansas" strategy: they decry the courts when they move against moral values, but that sets up de-legitimizing the courts when the courts rule against their economic policies (holding corporations accountable, etc.). At least, that makes sense to me.

and still, people don't get it (i have in mind felixrayman in the comments threat at ObWi): he thinks a higher standard than clear and convincing evidence is required in cases like this. nothing in what he's writing suggests he realizes that this standard is not merely a preponderance standard, as in civil cases, albeit it's also not as rigorous as beyond a reasonable doubt.

but this proof thing keeps coming up in more reasoned exponents of the right. of course, they say i'd rather err on the side of life. but then watch them disparage the ten-plus years of appeals that generally occur before a capital convict is actually put to death. erring on the side of life? whatever. this whole debate is so garbled its pointless.

hilzoy's post was a breath of fresh air. i wish more prominent pundits, not to mention the left, would pick up its themes more forcefully and lay bare republican hypocrisy for what it is when it comes to the courts. nothing could be more activist than wanting to overturn roe, given thirty years of precedent supporting it.

Joshua,

In defense of felixrayman at ObiWan, he doesn't suffer from inconsistency: he's against ending life at any point, in any circumstance. Hence, keep the feeding tube for Terry, and no executions for prisoners. This, at least, is consistent, and I've admired his stand (though I don't agree with it).

As for the "thirty years of precedent" for Roe, I'm not sure that precedent counts for much. After all, how much precedent did Brown v. Board of Ed have behind it? You wouldn't argue for precedent there, would you?

re felix, i was only halfway through the thread when i wrote the above comment. when i came to his death penalty statement, later, i realized i'd been unfair. consistency is huge in these two areas, and he's one of the few who shows it. i can't fault him that; and in that way, his arguments hold up way better than sebastian's.

if precedent doesn't count for much, than neither does the commonlaw or the whole anglo-american system.

here's the thing: stare decisis, one of the justices once said, is not a suicide pact. there's a point at which you realize something has to change, that prior interpretations of the constitution have been wrong. o'connor (or maybe kennedy -- i can't remember whether it was in his plurality or her concurrence) in planned parenthood laid out a pretty articulate account of what the court needs to see to overturn its prior precedent. while brown was villified at the outset, it was a) humane in keeping with the humane underpinnings of the constitution, b) timely, because as much backlash and conflict as it prompted, the alternative, widespread enduring race riots, was equally foreseeable, and c) a decision at the tip of a spear that had been flying for a while.

and finally, i'll concede that i've been pretty well convinced that brown, and to a lesser extent roe, are simply weak cases in the articulation of their rationales. i think equal protection probably would have been a better basis for roe, and brown . . . well, i think it was a truly exceptional case. regardless, both cases have become part of a body of settled law (yes, the abortion debate rages, but fewer than 40% of the country would want to see it completely overturned) and it's the settling of law that's crucial. we unsettle it when we must, but 30 years of not unsettling carries some practical weight.

it can't be the case that each newly composed court revisits hundreds of years of precedent to make it in its own image. aside from being impractical, it runs completely contrary to what this system was supposed to be about.

Joshua,

To my knowledge, precedent means much more in the (UK) commonlaw system than our (US) legal system. That being said, O'Connor/Kennedy's requirements for overturing precedent sound fine, but any future court is not bound by those (or any) requirements. Precedent means as much or as little as the Supreme Court wants it to mean. That can be good: Roe and Brown are examples where precedent was overturned and it was a "good" decision; post-Roe abortion decisions that have kept the core of Roe have used precedent as a means of keeping abortion legal even though most of the court might have voted it down without precedent. It can be bad: (I can't think of a case where they created new precedent and in so doing made "bad" law, but I'm sure you can) and Dred Scott was a case of using precedent to maintain "bad" law.

I'm not really sure that precedent means very much.

Well, how much it means depends on the membership of the Court. If there is one thing I learned from Souter's confirmation hearings it was that he'd be likely to be a strong supporter of precedent (as indeed he has been - much to the dismay of right-wing Republicans). Thomas seems to feel that precedent doesn't bind him at all. So ... well, this is one of the reasons that the actual individuals who serve on the Court matter so much.

baltar, in some sense yours is the sort of dominant legal realist position on how courts do what they do. in the face of the empiric validity of that fundamentally cynical position, it's hard to debate much. at the supreme court level, any alliance of a few justices can do just about anything in theory, which is of course what keads the right to announce its indignation.

but while that is the worst-case-scenario (in my mind), i don't think the evidence bears it out. notwithstanding lots of carping from myself and others, the truth is the vast majority -- vast majority -- of cases decided in the federal appellate courts don't mess much with precedent. hone, incrementally adjust to reflect contemporary realities, even err, but rarely do you see an overt trampling of precedent. thomas, as armand notes, is really the only justice seriously and explicitly indifferent to precedent. he believes the constitution has a fixed value and meaning, and that all decisions that stray from that meaning, no matter how venerated and unanimously accepted, are simply waiting for a principled court to overrule them.

at the state level, where the caseload is so heavy, i can attest from experience to the fact that nobody's looking to tamper with settled law, or at least not very often. churn and burn, churn and burn, is the name of the game, and where precedent provides a fairly handy answer -- rock on, that's one more case out the door. that circumstances beg for such restraint, i should add, is by no means a bad thing. like my boss, i'm a fairly liberal cat with a strong bias toward judicial restraint. i think restraint is the norm, and i'm sick of conservatives crying as though that weren't the case. it's not rogue judges who award massive sums of money in tort cases; it's juries, who reflect in some fundamental way the attitudes of society toward the increasingly large, ever-profit-over-patron-motivated corporations they see as defendants.

i disagree, in any case, that the anglo tradition so wildly diverges from ours. we don't call it the anglo-american tradition for nothing. yes, in the past fifty to one hundred years, much law has been codified to an extent unknown in england, and that takes some discretion away from judges to work in light of past cases. furthermore. furthermore, we have an express constitution, the interpretation of which is more concrete than that of england. but all of these things -- regulations, statutes, constitutions -- must be interpreted, and those interpretations invariably must account for prior interpretations. if we are not so much a commonlaw system any more, we nonetheless find our legal system governed by commonlaw interpretive methods. i don't think, at the end of the day, there's as much of a difference as sometimes might seem.