Monday, September 27, 2010

Delegitimizing the Supreme Court, the third branch of government, for Politics.

Is conservative judicial activism okay if conservative Americans don't complain or mind the outcomes? Should conservatives stop complaining about liberal activism is they're going to allow that privilege for themselves? I know, it would be liberal projection to assume conservatives would even consider the possibility of a little self introspection.

But two Supreme Court decisions recently resolved for conservatives the fight over buying elections and fulfilling the gun lobbies centuries old push to interpret the Second Amendment as a personal right to bear arms. One Justice recently came out with a warning:

NY Times: During interviews about his new book, Justice Stephen Breyer has spoken … about the court’s legitimacy, or the respect it relies on. In his dissent from a decision striking down the District of Columbia’s gun-control law, he showed why. “In my view,” he said, “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” So would his view of how the court should decide cases.

As he puts it in the book, “Making Our Democracy Work: A Judge’s View,” the court “must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law.” Pragmatic means reckoning with a law’s words and history and the precedents interpreting it, but also its “purposes and related consequences, to help make the law effective.” The goal, he says, is “to apply the Constitution’s enduring values to changing circumstances.”

In academic circles, conservatives and liberals alike have called for term limits for justices, because life tenure and long service could lead them to do the job less well than they should.

The New Yorker’s Jeffrey Toobin points to the judicial activism of Chief Justice John Roberts and the conservative majority as a major source of apprehension for Justice Breyer … Toobin describes Justice Breyer as “unskilled in the art of the poker face” and says that he used last January’s Citizens United decision “to take a shot at Roberts” in the book. Justice Breyer said they disregarded “a traditional legal view that stretched back as far as 1907,” and had recently been affirmed.

The message of Justice Breyer’s book is that the court jeopardizes its legitimacy when it makes such radical rulings and that, in doing so, it threatens our democracy. That message is powerful, ominous…

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