Sunday, July 03, 2005

Supreme Justice

The latest round of Supreme Court rulings has given people of all stripes something to worry about. Namely: individual liberties are being profoundly affected by nine aging lawyers. Any five of whom determine the current status of the law of the land. To be sure, this is nothing new, but the progression of precedents and legal justifications for the latest majority opinions are rather unsettling, to vastly understate the case.

In an article that recounts the recent history of modern jurisprudence, Julian Sanchez alluded to the Sorites Paradox, which essentially deals with the problem of vagueness. The common example is the difficulty of determining exactly what is and is not a “heap”, as in: just how many grains of wheat (or sand) constitute a heap.

The real issue though, one that I’ve addressed before, is that the Supremes are tasked with the strict interpretation of the constitution and the law, rather than stretching the plain meaning of words beyond the breaking point. Moreover, the High Court ought to be able to determine whether or not a particular precedent is reasonable and just. Again, Sanchez wrote the following:
[The] problem is, concepts like "interstate commerce," "public use," "unreasonable search," and "cruel and unusual" are similarly fuzzy. And Stare Decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court's interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap…
Likewise, Hammer weighed in on the current SCOTUS blunders: So there you have it. One block of the court seeks to increase the power of the government using expansions of previous case law, the other tends to restrict the power of the government using the (horrors!) Constitution.

On a positive note, Nick Gillespie (Editor-in-Chief, Reason) interviewed Mark Tushnet of Georgetown University Law Center, who suggests that:
the High Court’s influence on American life is generally overstated. He also sketches the legacy of William Rehnquist as chief justice, declares that Antonin Scalia “isn’t as smart as he thinks he is,” and argues that the often dismissed Clarence Thomas is philosophically the most interesting sitting justice.
Reason: In A Court Divided, you write that Rehnquist and Justice Clarence Thomas in particular have laid the groundwork for a revolution that would truly reconstruct constitutional law. What would the revolution look like?

Tushnet: The easiest way to describe it would be to say that privatization of Social Security was constitutionally required, not just permitted. [A full-blown Rehnquist-Thomas revolution] would develop restrictions on the scope of Congress’ power to tax for redistributive purposes and limit what could be done under the rubric of “general welfare.” That kind of thing.

Lastly, in the wake of Justice O’Connor’s retirement, speculation abounds. My personal favorite for the empty chair is, obviously, Janice Rogers Brown. I’m in good company, as Scott Scheule insists: ”My libertarian friends, there can be no other choice!”. In addition, fellow Life, Liberty, Property community member T.F. Stern reasons thusly:
The logic of nominating Janice Rogers Brown is nearly too good to pass up. To begin with, the Democratic Senators have already passed off on her ability to serve in the capacity of an appellate court. They have passed off on her credentials to the point of making themselves obviously partisan for their previous efforts to deny her the requested position. Having already approved her on such merits it would logically fit that were her name to be offered as a replacement any attempt to block that nomination would be futile.