April 21, 2005

"This Court is, in fact, a Goldwater and a Reagan Republican Court."

Lawprof Marci Hamilton has a new essay up at Findlaw.com: "Senator Frist and Representative DeLay's Claims of Supreme Court Judicial Activism and Anti-Religion Bias: Why They Aren't Persuasive":
Even if politics must define the Supreme Court -- and the truth is, law defines it far more -- then today's name-calling by both the far left and the far right misses the mark. This Court is, in fact, a Goldwater and a Reagan Republican Court.

The Goldwater Republicans, embodied by Justice Sandra Day O'Connor, believed in individual rights, separation of church and state, and federalism. No wonder, then, that they believe that no single religious viewpoint should determine whether a woman could obtain an abortion.

Meanwhile, the Reagan Republicans were united under a single banner of smaller government (which translates into states' rights, or federalism).

These positions have been all but abandoned by the current Administration, but they were and are, above all, moderate ones. ... [F]ederalism is not a partisan stance, but a constitutional basic. And the principle of separation of church and state, too, is no more partisan -- and no less part of our Constitution -- than, say, the fact that we have a bicameral legislature.

There's much more in the essay. You should read it.

8 comments:

Art said...

On the editorial page of today's Wall Street Journal, Ted Olson, hardly a bleeding heart, argued it's time for Republican legislators to cool it with the anti-judicial rhetoric.

John Thacker said...

Ah, yes, so obsessed with federalism and states' rights that they as a result won't let abortion be decided by the states. Not all that persusive, really. Goldwater Republicans who won't strike down affirmative action. Remember, Goldwater voted against the Civil Rights Act because of concerns that it would restrict private rights and bring in affirmative action. (Hubert H. Humphrey vowed to eat the Federal Register pages of the debate on the bill if it could ever be found to have legalized affirmative action.)

How often do I hear the Left use stare decisis to justify the abortion jurisprudence, but ignore it completely when it suits their purposes? (Death penalty law, etc.) International law is used when it gives a result that people like (death penalty again), but of course never when it doesn't. (abortion again-- try looking at European laws on it, and notice how some nations have recently restricted late-term abortions based on technology. Considering how Casey and Roe left room for advancing medical technology to change the right, I'd say that it's pretty similar to the death penalty jurisprudence.) Sometimes federalism is important-- but never in the case of abortion.

Odd, that. Ah, well. Hypocrisy happens to everyone.

John Thacker said...

Ah, yes, so obsessed with federalism and states' rights that they as a result won't let abortion be decided by the states. Not all that persusive, really. Goldwater Republicans who won't strike down affirmative action. Remember, Goldwater voted against the Civil Rights Act because of concerns that it would restrict private rights and bring in affirmative action. (Hubert H. Humphrey vowed to eat the Federal Register pages of the debate on the bill if it could ever be found to have legalized affirmative action.)

How often do I hear the Left use stare decisis to justify the abortion jurisprudence, but ignore it completely when it suits their purposes? (Death penalty law, etc.) International law is used when it gives a result that people like (death penalty again), but of course never when it doesn't. (abortion again-- try looking at European laws on it, and notice how some nations have recently restricted late-term abortions based on technology. Considering how Casey and Roe left room for advancing medical technology to change the right, I'd say that it's pretty similar to the death penalty jurisprudence.) Sometimes federalism is important-- but never in the case of abortion.

Odd, that. Ah, well. Hypocrisy happens to everyone.

Knemon said...

I'm pro-choice, but ... she seems to be stealing a base when she says:

"they believe that no single religious viewpoint should determine whether a woman could obtain an abortion"

Are religious views the only views which could lead one to oppose abortion rights? Even if that's the motivation for 95+% of pro-lifers (which I'm sure is the case), this strikes me as a little bit of sleight of hand.

Knemon said...

Having by now read the rest of the article, I realize that in context it follows from what she's saying. So ... never mind.

Richard Fagin said...

Prof. Hamilton's essay seems to be on the mark for the most part. It is encouraging that there appears to be about equal criticism of the courts from both ends of the political spectrum, which stands in stark contrast to criticism of the mainstream media (where most of the charges of bias appear to come from the right side).

There are a couple of subjects in which the Supreme Court's holdings do appear to be validly criticized by the likes of Sen. Frist and Rep. DeLay: establishment clause cases and death penalty cases. The courts seem to take the position that any religions expression related to a public function is unacceptable (prayers at high school athletic events, bible displays in front of public buildings), almost holding that citizens have a right not to be offended by another's public display of religious belief if there is a public entity involved. There does appear to be some hostility to prayer in the public square, even when clearly not coercive. Arguably, the 9th Circuit was on better ground holding the pledge of allegiance unconstitutional; at least there is some compulsion to recite the pledge and its invocation of God.

Similarly, the recent juvenile death penalty holding can only be described as "made up." Getting all bothered about references to foreign law doesn't change the fact that the holding represents, purely and simply, the policy preference of 5 Justices; the pure illogic of holding that a crime not punishable by death would be so punishable, if committed by the same person (age 17 years and 364 days) under the identical circumstances the following day permits no other conclusion.

Beyond those items, the courts really have not been all that radical or activist. I say this as a resident of, and having the value set of, a person from metropolitan Houston, where about
10% of all the death penalties in the country are handed out, and so, like the former Solicitor General, could hadlry be called a bleeding heart liberal.

Joe said...

Marci Hamilton's column is impressive though the comments about the "far left" is dubious given the voices she says come from there really are more "mainstream." Suffice to say, the "far left" is just not powerful these days.

As to juvenile executions, why is it "made up" to note that we should not kill those who are not part of the voting public that uphold the penalty in the first place? Not that this is the only way to defend the decision; just a pretty decisive one.

As to stare decisis, which the right ignores in various cases (though at times you'd never know it), only a small group truly wants the Court to overrule the death penalty totally. Overruling a 5-4 decision from the late 1980s on a subissue is not too remarkable. The "victim impact" rule was changed in a third of that time. (the other way)

Joe said...

One more thing ... as to the abortion issue, in a broad sense (see Ronald Dworkin, etc.) it is a religious/moral issue.