SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, April 05, 2005

...BUT YOU CAN'T CRITICIZE THE COURTS!!! Recent articles in Slate, New York Times, and elsewhere have been complaining about center-right criticisms of judicial decisions. This is nothing new. Critics of controversial court decision have routinely been criticized THEMSELVES for daring to question the unassailable wisdom of judges.

But why? If we can criticize the President and we can criticize the Congress and criticize state governments--and do so harshly--then why can't we criticize the judiciary? Federal judges have lifetime appointments and a nice retirement package. If they can't stand the heat...

So when I hear cries that judicial independence is being undermined by people exercising their free speech rights, I am decidedly unsympathetic. When I hear elitists complain about citizens having little respect for the latest federal court case making headlines or for undermining the prestige of the courts--I am none too concerned. The respect and prestige of the federal judiciary has risen and fallen throught the years, and rightly so. The Great John Marshall handed down some important, landmark decisions that helped solidify the young nation. Conversely, Chief Justice Taney authored a horrendous opinion in Dredd Scott that helped to precipitate the Civil War. Further, a post-Civil War Supreme Court WRONGLY and SEVERELY limited the powers of the Congress under the 14th Amendment to deal with the mistreatment of the freedmen in the Southern states (and throught the nation). But then the court came through in a moment of moral triumph to end the wrongful practice of school segregation in the 1950s.

It is undoubtedly so that many criticisms of our judiciary raised by observers miss the rationales underlying such decisions or are the product of poor reasoning. But so are many attacks on the President and Congress. Seeing as the federal judiciary is taking an ever-increasing role in regulating the day-to-day activities, it is incumbent upon a free and self-governing people committed to the rule of law to speak out when they believe one of the co-equal branches has overstepped its boundaries or failed in its important role.

Sometimes people have a hard time hearing opinions with which they disagree. I suspect this is quite often the case for proponents of judicial supremacy. Rather than complain about the criticisms of major court cases, they should give reasons for supporting the decisions in those cases.

Deacon and Hindrocket have comments at Powerline about criticisms of the courts and the criticizers of court critics. I particularly appreciate Deacon's following comment:

Consider Justice Ginsburg. I have no basis for thinking that she is other than thoughtful and erudite. However, she recently stated that U.S. courts should continue to look to foreign law and legal thinking for guidance in part because the way foreigners view America is influenced by what they think about our legal system. In other words, judges should look beyond the law and concern themselves with shaping America's image abroad. Yet if one were to suggest to Ginsburg that the Supreme Court should worry about what Americans think of our legal system, Ginsburg or her admirers would probably consider the suggestion an attack on judicial independence.


Powerline remains one of the best blogs around--if not THE best.

Oh, and by the way, I hear FAR LESS complaints about criticisms levelled against constitutionalist judges such as Clarence Thomas or Antonin Scalia and the federalism cases where they have been in the majority. If someone disagrees with, say, the Supreme Court's 1995 decision of U.S. v. Lopez--striking down the Gun Free School Zone Act as beyond the scope of the commerce clause--I don't think judicial independence is undermined. I actually like to hear a good critique. It provides for an opportunity to engage in further debate and dialogue about how to deal with such issues and the paramaters of enumerated powers.

The Constitution was written for "We the People." And "We the People" should feel free to speak our mind about all three branches of government, elitists and judicial supremacists notwithstanding.

(North Seattle--Green Lake, WA)

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