The tiny flame of optimism deep within my bitter core is kept alive by the infrequent occasions on which common ground can be found between people of radically different ideological bents. This is rare, even though in a functioning democracy it should not be. We should all be able to agree on the basic principles of our system; that the law should be applied to everyone fairly, that elected officials should be held accountable regularly, and, perhaps most importantly, that we are a nation of laws and not mob rule.

I struggle to think of an idea responsible for more historical wrongs than the half-assed populist assertion that the distribution of rights (i.e., the application of written law) should be carried out by a show of hands. In other words, courts should make decisions based on what a majority of the country wants. Thus if segregation is sufficiently popular, its blatant unconstitutionality should be overlooked. If gay marriage is unpopular, the role of judges should be to construct legal rationalizations against it. If abortion contradicts your moral code, the Supreme Court should be stuffed with ideologues until the relevant laws are struck down. If everyone is afraid of brown people in turbans, the legal system is obligated to agree that anyone caught up in the ensuing witch hunt has "no rights which the white man (is) bound to respect."

Only partisan hacks subscribe to this kind of logic. That is, only people whose principles are limited to agreeing with whatever their ideology or party says on a given issue are willing to advocate for such a system irrespective of the fact that any remotely educated understanding of the Constitution, our government, or the attitudes of the sainted Founders precludes it. Oddly enough, a correct understanding of civil libertarianism – not Glenn Reynolds/Megan McArdle "libertarianism" that provides a glib echo chamber for GOP talking points – brings the far left and right together in opposition to this kind of nonsense.

You can imagine how rarely I find myself in agreement with someone named Allahpundit, but the former Michelle Malkin employee has, to his credit, actually read enough to understand the traditional conservative position on the role of the courts. So rather than making this a left-right issue, it appears that this is an issue dividing people according to their ability to distinguish their asses from a hole in the ground. He states, regarding the failed retention bid of three Iowa state Supreme Court justices who allegedly were "pro" gay marriage:

Everyone wants courts to be independent enough to issue unfavorable rulings that the majority might not like; it’s the only way to protect minority rights, after all. But then, everyone (or almost everyone) also wants courts to be accountable somehow so that they’re not tying the majority’s hands with nutty extraconstitutional rulings. Iowa’s solution: Let the governor appoint supreme court justices but put each one to a “retention” vote every eight years. That’s a nice long period of time during which they can rule however they want without worrying too much about elections, followed by a referendum by the public on how they did. A happy compromise! Or … not so happy? (…)

One potential problem with the “retention” framework is that it doesn’t insulate judges from popular referendums as well as it purports to. For instance, the gay marriage ruling that got these three tossed was actually endorsed by all seven justices; the next one will be up for election in 2012, and may well be looking to “atone” somehow in his rulings before then if he gets the opportunity.

That’s inevitable in a system where judges have to face the electorate at any point, but like I said up top, it comes at the price of total independence. (Imagine how desegregation rulings in the 50s might have differed if federal judges couldn’t rest easy in knowing that they had lifetime tenure.)

He is even astute enough to point out that any system that elects judges outright – as many states do for local, appellate, and state Supreme courts – might as well not even have a court if voters' criterion is, "Do I agree with the outcomes of the cases he/she decided?" At that point it would be cheaper, easier, and more efficient to simply decide how the law will be interpreted and applied via internet polls and AM radio call-in shows. The Founders were smart enough to insulate Federal judges from the whims of public opinion once in office; unfortunately few states followed their example. Electing a judiciary works if we assume the best of voters, assuming that they will choose judges based on competence and fairness rather than ideological or single-issue litmus tests.

In reality, it cheapens the law and causes our system of checks and balances to collapse.

Legislatures are conduits of public opinion. Courts exist to apply the brakes when public opinion demands things that contradict the basic legal principles of our system.

The still-anonymous (after all these years, no less) Allahpundit is probably against gay marriage while I am for it. But he/she understands that we are not supposed to be choosing judges based on whether they agree with us. Americans believe (or claim to believe) that justice should be blind, impartial, and consistent, yet they elect and reject judges using crude and uneducated opinions as a litmus test. It is to some extent a slippery slope argument, but one does not have to be a full-fledged alarmist to see the dangers of a judiciary that panders to the preferences of people fervently committed to a strange, imagined version of the Constitution and totally ignorant of the real one.

19 thoughts on “A SHOW OF HANDS”

  • Apparently AllahPundit is an atheist, doubt he's against gay marriage. He might though, just doesn't seem likely.

  • Unfortunately the human species has survived and thrived due, in part, to a highly developed sense of Us v. Them. Unlike other species, the human is endowed with a higher reasoning function that allows us to imagine natural outcomes in the future tense, i.e., if I kill my neighbor today, he won't be around tomorrow when I drag my caribou home, looking for a handout.

    We've become more refined but old habits (and instincts) die hard. Still evolving — sorry Sarah.

  • I love what you've written, but there is a devil's advocate argument here. All one has to do is look at the stuffing of the Supreme Court as you mentioned. Although I agree with you that it has historically proven to be a boon to our society that those who sit on the federal bench are there for life, I continue to worry about the continual rightward slide of the Supreme Court. We already have Citizens United out of the Roberts Court and I'd lay money that that's just a start.

    It could also be argued though that this is only a symptom of our broken legislature. Anytime a Supreme Court vacancy comes up during the term of a Democratic President, they appoint someone less liberal than the retiring Justice mostly because they know that no one else will get approved. Senators seem to have taken the same "mob rule" approach as the people of Kansas in recent years using a judicial candidate's views on key issues like gay marriage and abortion to decide whether they get their vote of approval, rather than whether they're simply qualified to sit on the bench.

  • @Natalie:

    As you were getting at in the last part of your post, the problem is that federal judges are, these days, subject to what is effectively mob rule — in order to get confirmed and actually get their place on the bench, they have to be approved by a congress that functions in precisely the way appointments are supposed to avoid. Look at Sotomayor: During her confirmation process, nobody was talking about her law credentials. The entire discussion was about her rulings and whether they comported enough with the interests of WASPs. That is precisely NOT how the system is supposed to work.

    It goes back to things like Prop 8. The people voted on a referendum that was blatantly against the spirit and letter of our constitution, that being equal protection of everyone under the law. They voted to strip their fellow citizens of rights. The court, acting as it was supposed to, heard evidence on both sides and decided that freedom was more important than the popular will. Then the right starts blathering on about "activist judges" usurping the "will of the people".

    And it infuriated me that major media outlets weren't reminding everyone that desegregation was an act of "activist judges" usurping the will of the people. That interracial marriage was an act of "activist judges" usurping the will of the people.

  • Funny how they are "activist judges" only when they give a ruling the Reich-WingNuts don't like. Just like they are all for "States Rights" until the people of a state pass a law or referendum the Reich-Wing doesn't agree with. The sad part is that the sheeple can't seem to see the contradiction.

  • I wouldn't agree that the idea of "activist judges" belongs solely to the right wing, though I would agree that they trend that way more than those of us on the left do.

    @John As I was getting at in the end of my last post, I'm not sure whether the solution is found in the Judicial or Legislative branches, and I think the solution varies widely between the Federal level and that of the various states. As for the Supreme Court, and the country as a whole, I think it comes down to healing this problem in the Legislature where everyone assumes that those on the other side mean ill and therefore discussion/compromise with them should be avoided at all costs. I'm a student of history, and Congress has never been a place where the opposition were best buds (I seem to remember a beating with a cane somewhere in the 1850s) but I don't know how to tell objectively if we've proceeded to make it worse than it already was.

  • The Constitution exists as a talisman that helps to even the rhetorical field between actual freedom-loving folks (so lecturing and boring and virtuous) and the vocal minority of dickishness (who really tell ya what ya wanna hear!) There's magic in the parchment, no doubt, but like all talismans it only works as well as its wielded. So when is the Hobbit coming out in theaters anyhow?

  • Ahem…say what?

    The Constitutional Thought of Thomas Jefferson
    Author: David N. Mayer
    Published: Charlottesville and London: University Press of Virginia, 1994

    Review by James W. Ely Jr.

    'In addition, Mayer persuasively analyzes Jefferson’s famous maxim that “the earth belongs in usufruct to the living.” According to the author, this phrase encapsulated Jefferson’s concept of generational sovereignty. Although originally couched in terms of restricting the duration of laws and debts to a particular generation, this radical idea was transformed into a more generalized belief in constitutional experimentation. Unique among his contemporaries, he welcomed periodic constitutional change. Mayer pictures this favorable attitude toward change as “the hallmark of Jefferson’s constitutional thought” (p. 296). Jefferson was more concerned with responding to new circumstances and the will of the majority than with preserving stability of government. He urged frequent resort to the amendment process as a means of vindicating popular control. By the same token, he was hostile to constitutional development through judicial interpretation.'

    Screw them courts! TJ uh-huh


  • Its not just state courts. Look at John Roberts. Scalia is out there, but he is also bright and principled. As far as I can tell Roberts just asks the GOP what ruling they want and applies his rubber stamp.

  • @bb–

    I see your Thomas Jefferson and I raise you a John Adams:

    "The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law."

  • Steve from Ia says:

    It should be pointed out that CJ Ternus was actually appointed by Branstad; these justices were not all Democratic appointments. Further, while the justices were ousted by an approximate 54-46 majority, the question of a constitutional convention, which would have allowed all the gay marriage opponents to start in motion the amendment process that would have obviated the whole constitutionality question of this issue, was defeated by an almost 2-1 margin. It amazes me how so many of these people made the decision that these justices should not be retained due to their 'judicial activism', but when they got their own chance to affect change ran and hid. Additionally, many of the same are now complaining as the state Senate Majority Leader has already said he will block any attempt to address the issue through an amendment begun in the Legislature.

  • I'll just throw this into the mix – perhaps the most fucked up legal decision of all time (by a DA, not a judge) on this HIT AND RUN case. (bold added.)

    The victim, Dr. Steven Milo, whom Erzinger allegedly hit in July, suffered spinal cord injuries, bleeding from his brain and, according to his lawyer Harold Haddon, "lifetime pain."

    But District Attorney Mark Hurlbert says it wouldn't be wise to prosecute Erzinger — doing so might hurt his source of income. Here's Vail Daily:

    "Felony convictions have some pretty serious job implications for someone in Mr. Erzinger's profession, and that entered into it," Hurlbert said. "When you're talking about restitution, you don't want to take away his ability to pay."


    Fuck you, Milo!

    Holy Shit!

  • Zeb:

    Yours and John's position is the more orthodox. TJ was the radical on this one. Although I am not as radical on this as my hero, I think the apellate court system has long since left the rails in their pursuit of personal policy preferences over measuring laws against the Constitiution.


  • Here's the thing – there IS a democratic process for overturning what the Iowa Supreme Court did, short of subverting an independent judiciary: amending the Iowa Constitution to eliminate or modify the equal protection or due process clause (it's been a while since I read the opinion) to make an exception for gay marriage. Then after amending the Iowa Constitution, get some county clerk to deny a marriage certificate, let someone bring a court case, and (to the extent there's now reliance on the federal Constitution and no adequate and independent state ground for the decision) take any decision of the Iowa Supreme Court to the U.S. Supreme Court.

    The point is that THERE ISN'T THE FUCKING POLITICAL WILL in Iowa to do this through the established democratic process. Nor will there ever be again. Instead, in service of pissing on three judges they disagreed with, these assholes have blown a hole in the fundamental basis of our system of government.


  • What you describe is also applicable to the DOJ declining to bring charges for destruction of evidence in the "torture tapes" matter, or the confessed war crimes of Bush and Cheney.

    The rule of law is only imposed against those who don't have the power/money which grants immunity.

  • The question on the public's role in the judicial process has to be considered with certain care. Tocqueville wrote about it in Democracy in America, the majority can be tyrannical. The 'show of hands' lime test on any particular issue, which the media love using, can have significant influence on policy. This is a characteristic of democracy so well embedded in the system that many times there are two different approaches to facts and their arrangement: right/wrong vs. appropriate/inappropriate. The first is the lofty purpose. The second is not about personal conviction, but rather about how that opinion is seen by the voter.

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