Well, some of them are, that’s been quite thoroughly demonstrated. And not all of them are leftwing radicals, either. Some are legacy fetishizers and stuffy elites who believe more in the word of previous Justices than they do in the Constitution itself.
The just published final thoughts of conservative legal giant Robert Bork, blocked from the Supreme Court in a Democratic witch hunt, reveal his deep concerns that the high court has taken a turn for the worse and is a threat to American freedom
“We are now being ruled in some of our most crucial cultural and moral issues by judges who have acquired the power, but certainly not the authority, to take those decisions out of our hands,” he frets in “Saving Justice,” published after the longtime Constitutional authority died last December.
“With each issue it takes out of the hands of the people in order to please the elites, the Supreme Court moves from being what my friend Alex Bickel called ‘the least dangerous branch of government,’ to a place where it can lay fair claim to being the most dangerous,” wrote Bork.
[…]
“There is good reason to believe that this authoritarianism has become an inherent characteristic of most judges every since the time they realized the full extent of their power and their relative invulnerability. In that capacity, they continue their attack on the basic structure of the law by filling the categories of law with politics. Originalism provides hope that the constitutional structure of our country will be maintained,” he concluded.
In a way, this story tracks with my day’s first post, which concerns itself with interpretation and interpretation theory. Libertarians, classical liberals, and movement conservatives — originalists and constitutionalists, all — who agree to forswear stare decisis for Constitutional fidelity, are the only people who should ever be allowed on a bench, ever. If your job is to interpret and apply the law, it should be a prerequisite that, at the very least, you don’t declare that law upfront as “living and breathing,” because to do so is to state upfront that it is subject to your whims and fancies and designs.
We have the corporate intent of legislatures that imbue law with its meaning. To give the Court leave to bracket the intent of the legislature and substitute their own in its place is to violate the separation of powers, and therefore violate the Constitution while laying claim to be its ultimate arbiters and defenders.
It’s perverse, in a word.
(h/t Dennis D)
Somehow, I suspect that there’s more than a little of the wider problem captured in the argument presented in Andy Ferguson’s The Heretic.
John Roberts has taken the court and made of it something so whorish and fascist and filthy it’s sure to become a magnet for whorish and fascist and filthy justices for many many many years, and that’s not good
Right, feetypajamas — because the Chief Justice decides who gets on the Court.
why can’t you ever just nod and say attaboy happy would it kill you no it wouldn’t
Attaboy, feets — you got another thing wrong. Way to go.
Well, part of my problem with the court is an unhealthy obeisance not just to stare decisis, but to the putative constitutional judgment of the legislature itself, insofar as Roberts is willing to cobble together a ludicrous constitutional justification for an unconstitutional aspect of Obamacare simply because a slight Democrat majority rammed it through in the dead of night and a Marxist president signed it about ten seconds later.
The court has abrogated much of the job Marbury gave it ever since FDR threatened it into silence.
The job of the court is, it seems to me, to judge the constitutionality of legislation as interpreted through an originalist view of the constitution, not to kiss the legislature’s ass at every opportunity.
DiFi thinks congress can create whatever unconstitutional legislation they want to, and if it’s really bad, the SC will correct it. Roberts goes by the notion that congress actually cares about the constitution.
That’s a big part of why we are fraked.
that’s a start