Thread: Judicial philosophy vs. social philosophy

Krauthammer identifies the fallacy in retiring Justice Sandra O'Connor's agenda, better than any writer I have seen. A must-read.

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http://www.townhall.com/columnists/c...20050708.shtml

Judicial philosophy vs. social philosophy

by Charles Krauthammer
July 8, 2005

WASHINGTON -- Perhaps the most telling moment of Sandra Day O'Connor's quarter century career on the Supreme Court came on her last day. In her opinion on the Kentucky Ten Commandments case, O'Connor wrote that, given religious strife raging around the world and America's success in resolving religious differences, why would we "renegotiate the boundaries between church and state. ... Why would we trade a system that has served us so well for one that has served others so poorly?"

This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

But that, of course, is the job of the elected branches of government. Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: Whether the "system" the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?

O'Connor says that America has negotiated church-state boundaries so successfully that we should not rock the boat. But we went 170 years allowing school prayer and other kinds of public religious expression. Then, from 1960 on, we changed course and systematically stripped religion from the public square. In neither era -- school prayer or post-school prayer -- was this country particularly given to jihad or pogroms. How then does history recommend one negotiated boundary over the other?

Similarly in upholding Roe v. Wade. As the swing vote in Planned Parenthood v. Casey, O'Connor did not want to create yet another social revolution by overturning the blanket abortion right that had been in place for two decades. This is a reasonable social assessment. But equally reasonable is the contrary assessment, offered by Ginsburg (before she ascended to the Supreme Court) that Roe "halted a political process that was moving in a reform direction and thereby ... deferred stable settlement of the issue."

That is what made O'Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.

That compounded the problem. In the case of abortion, the result was the immortal proclamation that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" -- a supremely infelicitous definition of the liberty clause that is not just comically cosmic but infinitely elastic.

Such elasticity earned O'Connor the title of "pragmatist," a coveted virtue in Washington. Today it is particularly prized by liberals who are happy with the judicial revolutions of the past half-century, and are delighted that an appointee of Ronald Reagan should have upheld them in pursuit of social stability.

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature, but into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court. "The joke," writes professor Mark Tushnet in his book on the Rehnquist court, "was that people could save a lot of time and effort in making laws and filing lawsuits if only O'Connor would answer her phone and let them know what she thought beforehand."

Democrats are demanding that O'Connor be the model for the next Supreme Court appointment. "I urge the president and the Senate," says Sen. Barbara Boxer, "to ensure that her replacement reflects Justice O'Connor's judicial philosophy -- mainstream, pro-choice, and independent."

But that's not a judicial philosophy. That's political positioning embedded in a social agenda. What we need is a nominee who has a judicial philosophy -- grounded in constitutional principles that provide legal guidelines that politicians and citizens can understand and live by. I happen to prefer conservative ("originalist") to liberal constitutional principles. But either is preferable to none.

>gasp<

a conservative link to a conservative opinion in a conservative magazine?

how dare you, you know the only opinions that should be taken seriously are those fromt he left

Darn Little-Acorn, you beat me to it, I was about to post a link to this article and excerpt it in one of the two threads on O'Connor's retirement. It is an excellent piece by an excellent and thoughtful writer.

Originally Posted by Natasio

>gasp<

a conservative link to a conservative opinion in a conservative magazine?

how dare you, you know the only opinions that should be taken seriously are those fromt he left

"Conservative opinion" and "conservative magazine" I'll buy.

But how can a link be "conservative"?

Maybe in the sense that it does what it was supposed to do, and doesn't try to make up new stuff that its author never intended?

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Krauthammer's message seems to be: When it comes to deciding whether racial preferences should be implemented, private property should be forcibly taken, etc., these are matters that should be decided by the legislatures. That is, by the people's elected representatives in state and Federal governments... including those representatives who wrote and ratified the Constitution.

Once those representatives have decided what the law will be, the courts' job is only to decide how that law governs actual cases that come before them. O'Connor's famous announcement that racial preferences were OK for now, but should diminish in 25 years or so, goes far beyond what her Court had the authority to decide.

You want a 25-year limit? Fine, have your legislature make a law saying there's now a 25-year limit. And if that law conflicts with higher law (such as the 14th amendment to the Constitution), but you still want it, then you'd better get busy amending the Constitution... because the Supreme Court CANNOT do it for you. Their only authority is to decide that your 25-year-limit law conflicts with the 14th amendment... and to declare your law null and void, unless you amend the 14th amendment to allow it.

O'Connor, of course, thought that her declaring a 25-year limit, was just fine, and even legally binding. And that's why she made a poor SC justice - she often did not bother to confine herself to her job, but often usurped the legislature's job... in direct violation of the Constitution's requirement that all Federal laws be passed by Congress.

The idea of replacing her with another judge who exercises the same "philosophy", would be like replacing the flu with pneumonia - hardly an improvement, in a situation that desperately needs improving.

i agree, and the fact that it worked as it was supposed to makes it conservative.

i agree with your assesment. for all the hoopla about the bush 'regime' and how he is taking everything ove, they miss the courts who arent elected and yet do whatever they want.

they have tried to runaway with the power and for somereason the left and the dems cheer them on.

no matter how hitler-esque bush gets, or how much you hate him, in four years, the other side has a shot.

not so in the courts, we dont even get to decide who sits on it. as such it should be the weakest branch we have

"renegotiate the boundaries between church and state. ...

Who exactly were the original "negotiators?" Which party was MY representative?

That's Krauthammer's theme in a nutshell. The word she chose exposes here folly "renegotiate." LOL Any negotiations in a government governed by the US Constitution should be perfromed by the elcted representatives, not the unelected, life-serving, appointed judiciary.

"I urge the president and the Senate," says Sen. Barbara Boxer, "to ensure that her replacement reflects Justice O'Connor's judicial philosophy -- mainstream, pro-choice, and independent."

how can you be all three?

maistream and independant? hows that? do you really want somebody to be independant as long as they are pro-choice?

wha?

Originally Posted by Little-Acorn

WASHINGTON -- Perhaps the most telling moment of Sandra Day O'Connor's quarter century career on the Supreme Court came on her last day.

This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

I'd remind you that principled conservatives took us to war for no reason and passed tax cuts that are creating record deficits. We shouldn't try to emulate principled people who are consistently wrong.

O'Connor joined the majority and was intellectually consistent with the Constitution. Had our founding fathers wanted religious tests or a Branch of Religion in our Constitution they'd have put it there.

Note to self: Recall how you've never seen a massive granite statue of the Ten Commandments in any church in your life and note how wingnuts think we need to have them in our courthouses but not in church. Finally note that wingnuts don't put giant granite statues of the 10 Commandments in their back yards, their homes or their churches so it's safe to call them ALL hypocrites.

Pat