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Former BUFF driver; self-styled military historian; paid (a lot) to write about beating plowshares into swords; NOT Foamy the Squirrel, contrary to all appearances. Wesleyan Jihadi Name: Sibling Railgun of Reasoned Discourse

Thursday, March 03, 2005

Our Brilliant High Priests

Chefjef posts in response to "The Supremes and Planet Liberal."

Chefjef: To answer your question,

"Is it usual for the Supremes to invoke a "national consensus" of states' positions to justify a Federal court ruling?"
...Yes it is actually an established practice, in this type of case, to refer to a "national consensus." Also, to answer a rhetorical question you asked, Justice Kennedy WAS writing policy, but it was appropriate in this case; further, the latter is related to the former.

This case is what the legal community refers to as a "policy" case. That is, the question before the court is a policy question, it is not a strict legal question. The first Supreme Court, presided over by several of our Founding Fathers, established the precedent of "policy issue" cases in situations where a question may arise, de facto, in the law, but the resolution can only lie in deciding policy (e.g. the problem that led to litigation is partly related to the fact that just merely analyzing the black letter law doesn't provide any help in resolving the problem) but it must (for whatever reason) be resolved in the judiciary. The Supreme Court has been deciding purely "policy" cases since 1788, which is why I said Kennedy writing policy is appropriate (as a matter of established judicial practice. Whether or not the practice is reasonable is a separate question.)

Monk: Hmmm. Interesting. That part about the Supreme Court writing policy must be somewhere in the emanations of the penumbra of the corona of the solar wind of the Constitution. I don't see it in Article III, but it sure seems to happen a lot these days.

Chefjef: Anyhow, policy issue cases are tricky, and are a constant source of consternation in law school.

Monk: Gee, I wonder why?

Chefjef: Furthermore, your quote from Scalia's dissent is, essentially, the same dissent every judge uses. When conservative judges prevail in a policy case, the liberals say "the majority has based their opinion on their own judgment.....blablabla." When the liberals prevail, the conservatives say "the majority is supplanting their own judgement for the intent of....blablabla." They ALL do the same damn thing in policy type cases (for the most part; there are, of course, occasional exsceptions).

Monk: Ah, yes, but not all do so with the style of Scalia!

To return to Monk's first question, in policy cases judges do refer to to ALL manner of extraneous sorces. State supreme courts, foreign courts, lower federal courts, philosophers, the Founding Fathers, executive branch government name it. Basically, in many policy issue cases the judges already have a policy; not necesarily just as partisan politicians - regardless of your opinion of the individuals on the Court, they are all brilliant, extremely erudite and have developed, over the decades, intellectual positions on a host of "policy" issues. So, what they do in these cases is refer to all sorts of extraneous sources to slowly weave a philosophical justification for their decision. I still remember one case in law school (a unanimous decision) where the Supremes spent 20 pages discussing the land management techniques of feudal Lords in deciding a policy issue case involving an easement granted by a City to a housing developer. It was a Constitutional case, but there was no "strict construction" answer; they had to make up some policy to resolve the case and they did it by examining medieval European land management practices.

Monk: I don't for a moment question the intelligence or qualifications of the Court's members. But I do question the judgment of the majority in this case. You have two things fundamentally correct here, though: their citation of foreign law in this case was "extraneous" in its most commonly meant sense of "having no relevance." Further, you have it right to say they had to "make up some policy." No check and no balance here. No intervention of democratic-republican process either. Just five black-robed high priests of the secular humanist religion proclaiming policy on their own whim.

O,BTW, appealing to their "brilliance" or "erudition" to partially justify their drawing from extraneous BS is to lean in the direction of the emanations of the penumbra of the corona of the solar wind of an 'argumentum ad verecundiam' logical fallacy. I don't give a rat's ass about how many years it took Kennedy to come to his brilliantly assinine conclusion, but I do care that he called upon absurd sources to make an absurd judgment (thereby commiting a False Analogy logical error himself, I believe).

I know that answer is not appealing, but (in a broad, general, brief stroke) it is the judicial way of things. Hope it answers your query.


Monk: Thank you, counsellor, it does answer my query. And you are right that the answer is not applealing. In fact, it sucks. Having the Supremes dictate policy from empyrean reaches subverts the lawmaking functions of our government. I admit there are times it is necessary, as when the legislature and executive have consistently failed to act on a moral imperative--a la Brown vs Board of Education*--but these times should be as rare as they are necessary. The Roper opinion was the dictatorial fiat of an imperial court, and I mean that last term literally: they have conquered part of the law, they keep their right to policy-making jealously to themselves, and they rule our nation far more than they should.


* This perogative can be abused. For every Brown, there is also a Dred Scott.

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