Posted by Juan Non-Volokh:
Caplan on Judicial Independence:
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115725655
[1]Legal Affairs editor Lincoln Caplan had [2]this article on judicial
independence in Sunday's Washington Post "Outlook" section. I like
Caplan's magazine, but I can't say the same for his essay.
The article is filled with contradictions. For instance, Caplan
writes:
the legal right is increasingly divided between those who practice
what the politicians preach and others keen to pursue their own
agendas through the courts. Some, like Stanley Birch, adhere to
traditional concepts of judicial restraint. Others, including
Justices Antonin Scalia and Clarence Thomas, in the name of
applying what they regard as the original intent of the
Constitution's framers, have no compunction about aggressively
striking down acts of Congress in ways that conservatives once
called activist.
Now there are certainly divisions on the right between those who favor
more or less aggressive judicial review. But Caplan's comparison does
not work because his example of Judge Birch's "judicial restraint" is
striking down a federal statute. If Caplan wants to distinguish the
Birches from the Scalias and Thomases, he'll have to do better than
that.
While Caplan, at times, seems to praise judicial restraint, he still
wants judges who will strike down federal laws when necessary. In
other words, Caplan has an implicit theory about when it is or is not
appropriate to strike down statutes, but it remains unspoken. Instead
he hides behind notions of "independence" and "impartiality."
Caplan defends the Democratic filibuster of judicial nominees to
ensure the "impartiality" of judges. Yet how is it "impartial" to
demand judicial nominees commit to certain positions on key issues, as
some Senators have done? How is it "impartial" to impose litmus tests
on key issues (e.g. abortion)?
There are many ways to describe the sorts of judges that Senate
Democrats (and Caplan) would prefer, but "impartial" hardly seems the
right word. Setting aside the proper approach to judicial review,
striking down federal statutes supported by popular majorities on
bases other than explicit constitutional text may well be justified in
certain circumstances, but this would hardly be described as an
"impartial" approach to judicial review. Whatever the merits of
judicial deference to legislative decisions, this would seem to be
less "partial" than aggressively striking down federal statutes.
Finally, Caplan says "the current Supreme Court has a right and a
center, but no left." This is just silly. If it were the case we would
see more decisions overturning Warren and Burger Court precedents and
fewer cases that, like Lawrence and Roper, shift constitutional
jurisprudence to the left. Any description of judicial ideology along
these lines must account for the trajectory of the Court's doctrines,
many of which, I would submit, still trend left. (I'll have more on
this in a subsequent post.)
There's more, such as Caplan's strained treatment of [3]the so-called
"Constitution in Exile" movement, but I'll leave it at that. For
further critiques of Caplan's essay, see these comments by [4]Ramesh
Ponnuru and [5]Paul Mirengoff.
References
1. http://www.legalaffairs.org/
2.
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/07/AR2005050700009.html
3. http://volokh.com/posts/chain_1104346631.shtml
4. http://www.nationalreview.com/thecorner/05_05_08_corner-archive.asp#062433
5. http://powerlineblog.com/archives/010393.php
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
