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Sunday, December 10, 2000 Volume XXV, No. 42
Roswell, New Mexico
In this issue:
Face to Face with Judicial Activism
The Makeup of the U.S. Supreme Court
The So-called "Nine to Nothing" Decision
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The Makeup of the U.S. Supreme Court
So far, we have seen absolutely nothing surprising, let alone "shocking"
(another overblown usage spouted by the TV newsreaders and commentators)
about any of the court decisions, at any level, in the Florida electoral
controversies.
With regard to the US Supreme Court, we will remind you of the basic
lineup (sort of like baseball cards) which we have published a number
of times since the appointment of Justice Breyer, the last addition
to the court six years ago.
***The Conservatives***
There are three "conservatives," two of which are strong
and consistent in their view of the deference courts should show
to legislatures and to the plain, written word of the Constitution,
and of statutes. Those two would be Antonin Scalia, appointed by
Reagan in 1986, and Clarence Thomas, a Bush appointee in 1991.
Chief Justice Rehnquist, appointed an associate justice by Nixon
in 1972 and elevated to lead the court by Reagan in 1986, is generally
a conservative, but has a considerable tendency to accept the supremacy
of the courts and allow a good deal of encroachment by the courts
on other branches' powers. One could say there are 2½ conservatives
on the court and be perfectly understood.
***The Liberals***
On the other hand, there are four liberals on the court: John Paul
Stevens, appointed by Gerald Ford in 1975, David Souter, a 1990
Bush appointee, and the two Clinton justices, Ruth Bader Ginsburg
and Stephen Breyer, named to the court in 1993 and 1994 respectively.
These four basically adhere to the LawrenceTribe view of a court
as a very tiny legislative body, free to mold and shape the law
according to its own view of what is "good" for society
and what is "good" public policy. When people (many in
the media for example) speak of a "living Constitution,"
they are essentially advocating this approach to jurisprudence.
The plain words after all were mostly written some two centuries
ago. We must presume, the thinking seems to go, that most of it
surely must be "dead," the word normally assumed to be
the opposite of "living."
For liberals, the idea of reading the law and applying what a legislature
has said is either secondary, or in no wise considered as part of
their approach to a judicial controversy. The same goes for the
Constitution. This is not to say that they do not attempt to cite
some sort of legal, i.e. statutory or Constitutional basis, for
their decisions. Many times they do in order to appear to be basing
opinions on law. In actual practice, however, a "good result"
is first decided upon, then a liberal justice works backwards to
"find reasoning" which "justifies" the public
policy choice which the justice believes is a good idea and is attempting
to impose.
***The Middle***
In the middle, and easily the most unpredictable justices on the
court, we find Sandra Day O'Connor and Anthony M. Kennedy, both
Reagan appointees, 1981 and 1988 respectively. Each is sometimes
activist and sometimes restrained-----with little rhyme or reason.
Because of that they can in no way be considered "conservative."
On the other hand, because they sometimes show restraint, and sometimes
defer to the legislative branch, they could never receive full credentials
from the liberal club of jurists.
***********
The court can be said to divide roughly as follows:
2½ conservatives
4 liberals
2½ who are wholly unpredictable
5-4 decisions in favor of judicial restraint (as the current case
from the 4-3 decision by the Florida Supreme Court cries out for)
are reached only when the liberal (activist) case is either outrageous
or simply wholly unsupportable by ANY reading of the law. The Florida
case meets both criteria.
There is however, hardly an entrenched majority which favors restraint.
Exceptions frequently occur, especially when O'Connor, Kennedy and
even Rehnquist happen to believe that an issue at law happens to
present a good opportunity to mold beneficial public policy.
O'Connor and Kennedy for example, look on the widespread availability
of legal abortion as good public policy and find some way to apply
their votes in support of such a policy, regardless of the facts
in the case, or of the legal cases argued by the litigants.
Rehnquist is enamored of the central powers of federal government,
and can be said to be "statist" in his general philosophy.
He often finds ways to reflect that general view in cases before
the court.
He, as well as O'Connor and Kennedy, are very much charmed by the
ego-gratifying concept of the courts (the entire judicial branch)
as the supreme arbiter in all controversies throughout the country.
This latter view, sadly, is widely accepted in the general populace
despite the fact that no such view is anywhere to be found either
in the Constitution, the Federalist Papers, or any debates or records
of the Constitutional Convention.
The So-called 9-0 Decision
I first heard of the December 4th Supreme Court decision, remanding
the Florida Court's unanimous "legislation," by a cellular
phone call while driving between Roswell and Vaughn. The caller
informed me that the "court had ruled '9 to nothing' in favor
of Bush."
I was incredulous, asking "Are you sure about that?" "Well,
yeah, I think so," was the answer. Then I turned on Rush Limbaugh
who gave it pretty much the same spin. The problem is it just isn't
exactly accurate.
The decision handed down on December 4th was a per curiam opinion.
It expressed the opinion "of the court." No author is
listed, and, very importantly, NO VOTE was taken. The notion that
it was a nine to nothing decision is inaccurate.
What it meant was that at best, all the justices acceded to the
decision. Probably it is more accurate to say that they acquiesced
in the decision. That would be defined as "accepting or complying
tacitly or passively" in the decision, which, after all, was
issued without anyone's name or signature attached thereto.
I made the point that at least four of the justices of the US Supreme
Court are reasonably sure (or hopeful) that the Florida Supreme
Court will indeed return their case----this time being careful to
at least go through the motions of allegedly citing actual legal
underpinnings. (This is something they had not bothered to do in
the first ruling.) If they do something halfway reasonable, I conjectured,
then at least four members of the US Supreme Court are prepared
to go along with them. This has turned out to be accurate.
In summary, let's make this very plain so that anyone can understand
it:
Justices Stevens, Souter, Ginsburg and Breyer are all from the same
jurisprudential mindset that the Florida Court is from:
the law, the Constitution(s), the statutes (federal and state) are
only passing, sometimes almost irrelevant, exhibits in the realm
of "justice."
They believe----as do most judges and about 80% of lawyers----that
the courts are there to "do justice." That is, it is the
courts' job in the cases which come before them to come up with
an order which directs a new or corrective public policy. They are
all perfectly at home with the idea of being a very tiny, efficient
little legislature.
The problem is of course that we already have a branch of government
charged with those functions. It is a branch whose members are accountable
to the voters, unlike the courts.
Sadly, at the very minimum, four US Supreme Court members think
this way. On a given issue, as many as seven do so. We'll soon know
how many come down on the side of legislating in this case before
the court right now.