Obama and the Court

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

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Heller Affirmed

The U.S. Supreme Court today affirmed the lower court’s ruling in District of Columbia v. Heller.

The ruling essentially affirms that “the Second Amendment protects an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.” Scalia’s opinion (joined by Alito, Kennedy, Roberts, and Thomas) clarifies the meaning of the Second Amendment to the Constitution but allows significant latitude for regulation and gun-control. The ruling is largely silent on the issue of incorporation, although it hints that it would likely decide in favor of incorporation should the issue come before the court. Expect a challenge to Chicago’s ban to be formulated within the year.

I’m not an avid follower of the court, and I only occasionally read the opinions in full, so I was struck by Scalia’s often combative tone and his contemptuous dismissal of Stevens’s dissent. I agree that Stevens’s arguments regarding the definition of “to keep and bear arms” are tortured and forced, and I do think that Stevens’s position is wrong–as it pertains to law, philosophy, and history. (I enjoyed Scalia’s destruction of the argument that the idiomatic use of “arms” would control in the latter half of “to keep and bear arms” while the conventional usage would control in the first half. Scalia likened it to saying that a man, “filled and kicked the bucket.”)

All in all, the decision does as much as I thought it might: it affirms a limited individual right to own and use ordinary weapons for legitimate purposes disconnected with formal military service. It opens the door for further rulings clarifying the bounds of the right and–possibly–incorporating it (which I would applaud: the enumerated rights mean little if they are no safeguard against the tyranny of the respective States).

What did bother me was Breyer’s dissent. His argument rests on the idea that the court should rely on an “interest balancing” test in its evaluation of constitutional guarantees. Essentially, Bryer is arguing that if the court or the legislature finds a compelling interest in vacating a portion of the Constitution, it is wholly within their rights to do so. That of course, renders the Constitution meaningless. Scalia’s response to Breyer’s dissent: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” If the people find a provision of the Constitution no longer workable, there is a means by which they can correct the Constitution: by amendment. In the absence of amendment, however, it is the legislature’s responsibility–and the court’s obligation–to protect and defend the Constitution as it written.

One final note: I find it, frankly, nearly impossible to imagine the founders agreeing with the dissent. David J. Schenck makes the point clearly on scotusblog.com,

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

The arguments Justice Stevens marshals in his dissent are tortured and seem–at least to me–entirely a-historical. The Stevens dissent strikes me, for that reason, as slightly duplicitous. The Breyer dissent is the more honest argument. Breyer acknowledges that the intent of the founders is largely irrelevant in his analysis, whereas Stevens seems willing to twist history and logic to support his position.

The debate, after all, has never really been about what the founders meant, but rather if we cared what the founders meant. Either the Constitution constrains the government or it does not. Breyer’s position is that it does not. And that’s a position that I find deeply troubling.