June 12, 2008

Words Fail Me (Part 2,304,201): Supreme Court Rulings Edition

From the NYT story on the Supreme Court rulings that struck down most of the Bush Administration's attempts to keep Al Qaeda out of our courts, comes this wonderful quote by our fearless Chief Justice of the Supreme Court:

And Chief Justice Roberts said the majority had struck down "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants," and in doing so had left itself open to accusations of "judicial activism."

Two comments:

First, to my knowledge, the term "enemy combatants" has never been used formally and legally before. Thus, the set of "procedures and protections" that Mr. Chief Justice Roberts claims are the most generous "ever afforded...enemy combatants" is, in fact, accurate. This is because it is the ONLY set of "procedures and protections" we've ever had. There are no other set of procedures/protections for enemy combatants BECAUSE WE HAVEN"T HAD ANY BEFORE. Thus, this set is both the most generous and the least generous. It is the best, worst, middle, longest, shortest, most harsh, most lenient, the first to be eaten by my dog, the most purple and the bestest most wonderfulness set of procedures ever. It's all of those things because THERE ISN'T ANYTHING TO COMPARE IT TO. Mr. Chief Justice Carrot needs to find a few more brain cells, I think.

Second, we can now officially date the end of meaning for the phrase "judicial activism." It died today, Thursday, June 12, 2008. The conventional meaning of the term is when (unelected) judges create laws from the bench, and thus circumvent the traditional place where laws are made (legislatures). Today, however, Mr. Chief Justice Turnip used the phrase to describe the court striking down a law passed by Congress. The Supreme Court didn't make any new procedures or protections. It made no changes what so ever in how Enemy Combatants are treated; it merely said that the law that governed Enemy Combatants violated the Constitution, and hinted (strongly) that those folks down in Cuba might want to look at that 'ole 225-year-old document (there are a few copies around, for those unfamiliar with it) in order to figure out how to prove the terrorist are actually, you know, guilty. Thus, the phrase "judicial activism" now means not only legislating from the bench, but also striking down legislation from the bench. As best I can tell, this leaves judges' sole powers to be the ability to call for a lunch break. Thus, I declare, the end of meaning for this phrase. Mr. Chief Justice Parsnip will, one assumes, go along with this new judicial philosophy, and spend most of his time reading lunch menus, one hopes.

This administration cannot leave fast enough.

Posted by baltar at June 12, 2008 04:54 PM | TrackBack | Posted to Atrocities of War | Crunchy Nutbars | General Stupidity | Homeland Insecurity | Law and the Courts | Politics | The Ever Shrinking Constitution


In fairness, I and many others view the striking down of legislation as a form of judicial activism every bit as potent, and perhaps even more worthy of restraint, as writing interstitial law, stepping in when Congress has failed. The idea is that an unelected court should overturn the product of the democratic process only when absolutely necessary. By this measure, n.b., conservatives cannot swing the activism brickbat at liberal appointees, because over the past few decades the frequency of the Court's attacks on legislation have grown nearly exponentially, and across ideological lines. Of course, there's a correlation vs. causation issue there, since it's also the case that the number of laws passed by Congress has increased a great deal in that same span, but the fact remains.

Personally, I think the phrase lost all meaning long ago. And for that reason, among others, I find Roberts' employment of it here strikingly vapid, lazy perhaps, resorting to Fox News ticker memes in lieu of a well articulated jurisprudential objection.

But really, judicial review, by its very nature, is judicial activism. And as to legislating in the interstices, well, that's what commonlaw courts do as well. The simple fact is a court is bound by law to decide the controversy before it. It can't punt and say, Ah, well, the legislature hasn't spoken to this, so you're shit out of luck. Come back in a few years and maybe we'll be able to help. That's not what courts get paid to do; they get paid to decide the cases before them. And the less guidance positive law provides them the more creativity they must employ to reach a just, equitable, and rational result.

But the phrase judicial activism -- as far as I'm concerned, it's the jurisprudential equivalent of post-modernism . . . intellectual chicken, or tofu, it has only the flavor of whatever you cook it in.

Posted by: moon at June 12, 2008 06:11 PM | PERMALINK

I don't think we're too far apart. If you define judicial activism as you have - the courts preventing the will of the legislature either by striking down laws or writing them - then there has been judicial activism for over 200 years, and it has been practiced by both sides (didn't FDR have to pack the Supreme Court to get parts of the New Deal past?). Roberts wants to use a lazy club to beat the majority with; it's especially awful since it is clear that his side couldn't muster a sufficient intellectual argument to win any of the other five over. Scalia's comments were also lazily partisan (something about "this decision will cost American lives" or something equally vapid).

Posted by: baltar at June 12, 2008 09:04 PM | PERMALINK

Yeah, I heard about Scalia promising more dead Americans. Nice stuff, that. He's really turned into a class act. It'll take a lot of new dead Americans to outnumber all of those who have died for our constitutional values in the past, and I don't hear him bemoaning those deaths. Short memories all around, a ripening of the conditions for the encroachment of if not tyranny than its slightly dumbed-down cousin.

As for FDR, his threat to pack the Court (by increasing the number of justices) is thought to have prompted the existing nine justices to change course on the New Deal. "The switch in time that saved nine," is, I believe, the phrase that gets bandied about.

Posted by: moon at June 13, 2008 09:21 AM | PERMALINK

Or, well, it supposedly prompted one justice to change (Owen Roberts, a Hoover appointee who was the only member of the Court FDR inherited that FDR never had the opportunity to replace as he died a few months after FDR) - his was the "switch in time ...".

As to Scalia, yeah Publius calls that dissent "Malkin-esque". Which isn't too surprising given that he's long been the justice least likely to show a "judicial temperment" in his dissents.

Posted by: Armand at June 13, 2008 10:34 AM | PERMALINK
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