Reflection on the courts, the Supreme Court in particular
As a result of reading this op-ed piece in the NY Times about Elena Kagan's statement of judicial philosophy on how the courts need to "recognize the limits on itself and respect the choices made by the American people."
Which is all fine and a nice-sounding statement-- except in being wrong. Not that I'm advocating for some super-court that trumps all or some crazy authoritarian court either but the judiciary branch is the most limited-- procedurally and substantively-- of the three branches of government so the likelihood it will start tramping around rough-shod is slim to nil. The Constitution and our system have placed enough limits on the judicial branch that the judiciary overstepping its limits is, shall I say, not something to lose a moment's peace over.
Which brings me to the important point of how the court needs to respect the choices of the American people. Sounds great-- except it's not really true. I find it interesting that the author of the op-ed piece agrees with this philosophy of so-called judicial moderation while still supporting gay marriage but it seems to me he's missing something. The courts- the Supreme Court especially-- need to be the guardian of minority rights; it's their role in this system. And yes, that will sometimes mean going against the will of the American "people" since, as we all know, the "people" means the majority. And if not them, then who? Congress and the President are systemically built to follow the majority and for the most part, that's not a bad thing. But the entire point of having a third branch, independent of either Congress or the President, was to ensure that the majority couldn't run wild and trample on the rights of minorities, and let's face it, majorities tend to do that. The majority doesn't need more protecting, doesn't need another branch of government on its side. The minority-- whatever minority-- does need the judiciary on its side.
And it's a good thing to have a judiciary protecting the rights of minorities because-- another fact, so often forgotten in this country-- the majority can be wrong. The majority opposed de-segregation in our schools and supported slavery in this country for way too long, to say nothing of what the majority of men did for women's rights for so long. Saying the courts need to respect the choices of the American people is to say that Brown v. Board was wrong and Plessy v. Ferguson was right. Which is, thankfully, not something I think most people would want to say right now.
There's always so much talk about how courts shouldn't impose their own choices on the American people but it needs to be remembered that the people can be wrong. And just because a lot of people believe something doesn't make it right and postponing fixing a wrong is just perpetuating that wrong, not making it less wrong somehow. Or was Martin Luther King Jr. just supposed to sit down and say, 'I'll just wait until the majority of the American people agree with me'? Was Rosa Parks supposed to just give up her seat to a white woman because the majority thought she should? The only thing necessary for the triumph of evil is for good people to do nothing. Saying the majority of the American people isn't ready for gay marriage isn't an argument that should be made because my response is, so what? The majority of American people weren't ready for de-segregation either. As Joey Lucas expressed it in 'West Wing', that's like being the leader who sees the crowd running in one direction and cries out, 'oh, there go my people, I must find out where they are going so I can lead them.' Leaders don't do that; they're not supposed to do that. As Edmund Burke put it, a representative of the people owes them not just his industry but his judgment. And courts, judges, are leaders. They have authority, they have experience, they have education and they have a position that means they are and should be leaders. There are reasons for an independent judiciary and one of them is so that they don't have to worry overly much about the whims of the people. And anyway, it's unlikely that the courts ever will get too far out of step with the people. The best guarantee that the courts won't get too far out of step with the American people is that the judges are members of the American people. They live lives too and are unlikely to be-- the judicial nomination and election process being what it is-- part of the fringe elements or so far out there that they will be far out of step with the American people.
Which is all fine and a nice-sounding statement-- except in being wrong. Not that I'm advocating for some super-court that trumps all or some crazy authoritarian court either but the judiciary branch is the most limited-- procedurally and substantively-- of the three branches of government so the likelihood it will start tramping around rough-shod is slim to nil. The Constitution and our system have placed enough limits on the judicial branch that the judiciary overstepping its limits is, shall I say, not something to lose a moment's peace over.
Which brings me to the important point of how the court needs to respect the choices of the American people. Sounds great-- except it's not really true. I find it interesting that the author of the op-ed piece agrees with this philosophy of so-called judicial moderation while still supporting gay marriage but it seems to me he's missing something. The courts- the Supreme Court especially-- need to be the guardian of minority rights; it's their role in this system. And yes, that will sometimes mean going against the will of the American "people" since, as we all know, the "people" means the majority. And if not them, then who? Congress and the President are systemically built to follow the majority and for the most part, that's not a bad thing. But the entire point of having a third branch, independent of either Congress or the President, was to ensure that the majority couldn't run wild and trample on the rights of minorities, and let's face it, majorities tend to do that. The majority doesn't need more protecting, doesn't need another branch of government on its side. The minority-- whatever minority-- does need the judiciary on its side.
And it's a good thing to have a judiciary protecting the rights of minorities because-- another fact, so often forgotten in this country-- the majority can be wrong. The majority opposed de-segregation in our schools and supported slavery in this country for way too long, to say nothing of what the majority of men did for women's rights for so long. Saying the courts need to respect the choices of the American people is to say that Brown v. Board was wrong and Plessy v. Ferguson was right. Which is, thankfully, not something I think most people would want to say right now.
There's always so much talk about how courts shouldn't impose their own choices on the American people but it needs to be remembered that the people can be wrong. And just because a lot of people believe something doesn't make it right and postponing fixing a wrong is just perpetuating that wrong, not making it less wrong somehow. Or was Martin Luther King Jr. just supposed to sit down and say, 'I'll just wait until the majority of the American people agree with me'? Was Rosa Parks supposed to just give up her seat to a white woman because the majority thought she should? The only thing necessary for the triumph of evil is for good people to do nothing. Saying the majority of the American people isn't ready for gay marriage isn't an argument that should be made because my response is, so what? The majority of American people weren't ready for de-segregation either. As Joey Lucas expressed it in 'West Wing', that's like being the leader who sees the crowd running in one direction and cries out, 'oh, there go my people, I must find out where they are going so I can lead them.' Leaders don't do that; they're not supposed to do that. As Edmund Burke put it, a representative of the people owes them not just his industry but his judgment. And courts, judges, are leaders. They have authority, they have experience, they have education and they have a position that means they are and should be leaders. There are reasons for an independent judiciary and one of them is so that they don't have to worry overly much about the whims of the people. And anyway, it's unlikely that the courts ever will get too far out of step with the people. The best guarantee that the courts won't get too far out of step with the American people is that the judges are members of the American people. They live lives too and are unlikely to be-- the judicial nomination and election process being what it is-- part of the fringe elements or so far out there that they will be far out of step with the American people.