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God Save the Clerk

My entry on kritarchy spawned a lot of commentary, including a number of people insisting that I must be out of my head, because I was fundamentally arguing against judicial review. Typical of the genre was:

That's our political process at work. Sorry you don't like it. If you think it really, really stinks tho, you're free in this country to gather the support of a super-majority & change things.

I was going to write a rather long entry explaining that one can support the idea of judicial review, but believe that it should be exercised in a more prudential fashion, reflecting the competencies of the institutions of legislatures and judiciaries in settling claims. Chief among my points would have been the observation that Brown didn't integrate very many schools, but the 1964 Civil Rights Bill did; and that Roe v. Wade hasn't ended the debate the way legislative settlement has in Britain. Essentially, I was going to point out that the discussion we were having was a rather complex legal argument, not just a tenth-grade civics lesson.

But you see, I've got the write-on competition to finish today, which means I really shouldn't spend the time. (At least, if I want to stand even a slim chance of getting on law review.) Thankfully, I see that the Curmudgeonly Clerk has made my argument for me:

However, when arguable and ambiguous rights such as those at issue in decisions like Lawrence (the homosexual sodomy Supreme Court case) or Goodridge (the Massachusetts gay marriage case) are under consideration, employing the words "tyranny" or "judicial review" as a rallying cry might make rhetorical sense, but it does not really address the matter at hand. Critics of these decisions are not arguing for anything like tyranny, nor are they denying judicial review any place whatever. And libertarians do the debate a genuine disservice when they fail to even acknowledge that the countermajoritarian difficulty has real salience when the Court announces new substantive rights on slim textual pretext.

Those who would stake out such an ambitious role for the judiciary have a substantial burden of persuasion to carry. Although it has long been with us, the notion of judicial supremacy, which is what Milton and libertarians advocate rather than simple review, has not been the predominant conception of the federal courts until quite recently. See Larry Kramer, We the People: Who Has the Last Word on the Constitution?, Boston Review, Feb./Mar. 2004. What I find particularly lacking about the libertarian arguments presently circulating is that they seem not grapple with this issue in a serious fashion. In addition, while keenly aware of the shortcomings of majoritarianism, they seem to be blissfully unaware of the dangers of imbuing a single, insular, and rather small institution with such awesome power and incontestable authority on the most inflammatory political subjects.


Read the whole thing. Seriously, the Clerk does this better than I could had I a week to put it together. The idea of trying for a post-graduation clerkship is looking better and better.

Note, however, that after this bloody write on is done, you'll be getting some better commentary from me, including:
*Things for up-coming 1Ls to read over the summer, assuming they're itching for it
*The pros and cons of Columbia's "Perspectives in Legal Thought" course
*A long post on preparations for going to Japan

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Don't you think it really comes down to a disagreement over the value of the right at stake? Certainly everyone agrees that judicial review should be used prudentially -- that the practical effects, the institutional capital spent, and the importance of the right at stake should be weighed by the judges. Your examples of Roe and Brown are good examples here. Certainly the Court could have stayed its hand and let state legislatures deal with the issue. That is a fine solution, if you think it is okay for some states to outlaw abortion for some period of time. But for people who see a greater value in the right to choose, or the right to gay marriage, the benefits of waiting or letting the legislatures take care of it are outweighed by the need for prompt recognition of the right at issue. If the SJC thinks there is a right to gay marriage in Massachusetts, then the "good" of waiting to let the legislature deal with it has to be weighed against the "bad" of letting peoples' rights continue to be denied while the legislature mulls it over. And that assumes that the legislature then later decides to grant such a right (as in the Brown/CRA example) but what if it does not? Surely the SJC would have used up more capital, caused more disruption, and been even less "prudential" had they struck down a clear statement by the legislature rejecting gay marriage.
Good Luck on the writing competition, hope you are doing better than I am.
Avi: I spent the morning looking at my notes and realizing that I have no idea what I'm doing. So unless you're actually shovelling your brains out of your own skull with blunt instruments in an attempt to write this thing, you're doing better than I am. :)
Tony, When you're done with it, would you pass the shovel along? W
You've already got a better set of headphones than me, Bill. You want my shovel, too?
First off, best of luck with your write on, altho I doubt you'll need much luck. Now, back to the debate. I've read CC's post & your subsequent comments & post here, and I'm rather confused. You write above: I was going to write a rather long entry explaining that one can support the idea of judicial review, but believe that it should be exercised in a more prudential fashion, reflecting the competencies of the institutions of legislatures and judiciaries in settling claims...Essentially, I was going to point out that the discussion we were having was a rather complex legal argument, not just a tenth-grade civics lesson. How do you square that--particularly the last sentence--with this (from a comment you made on this de novo thread): the crux of my post: that judicial review provides a way for political change to occur not only sub judice, but fundamentally sub rosa. It gives a way for politicians to duck, weave, and not be called to account. True, the decision in Massachusetts is a state-level event, but U.S. Senators are willing to speak at the opening of a potato chip packet... and yet, nothing from Kerry. This is part of an argument for prudential use of judicial review, because it takes issues out of the normal process by which they are publicly resolved. This is the 'debate' we're all so happy about?...Goodridge was an act of judicial overreach that was imprudent and damaging to our institutions of democracy. I don't see the "complex legal argument." In fact, I see you saying precisely the opposite--that the "crux of [your] post" was, essentially, that Goodridge was "an act of judicial overreach that was imprudent and damaging to our institutions of democracy." That sounds much more like, as you put it, a 10th grade civics debate than a complex or intricate legal argument. Secondly, it’s just not true that politicians can duck & escape being held to account—when the GOP brings their despicable amendment up for a vote, John Kerry & every other member of Congress will be called to account. Just as they are nearly every session when other idiotic constitutional amendments are brought up to a vote—the Flag desecration amendment, the victims’ rights amendment, etc. I doubt many members of congress trumpet their votes against the idiotic flag amendment—important as protecting our First Amendment is, a vote ‘supporting the right for traitors to burn the flag’ is simply too easily demagogued. But we know, by their votes, where folks stand. Returning again to your last sentence in that de novo comment—that Goodridge was "an act of judicial overreach that was imprudent and damaging to our institutions of democracy.” I, and a substantial portion of the country, feel gays are being viciously & unacceptably discriminated against, and that the Government is impermissibly discriminating in handing out benefits & rights to married duos based on gender--or, as you stubbornly [and I believe wrongly] insist, sexuality. Either way, I find neither acceptable—morally, or legally—and each day that passes without their equal rights is a tragedy & a disgraceful injustice. This minority is being injured & denied a massive, massive right, and when a Court intervenes, declaring the end of this sorry situation, it’s acting imprudently? And it’s damaged our democracy? Look, either there’s a wrong, or there isn’t. If there isn’t a wrong here, then the court’s decision was out of line & requires an Amendment to fix it—National Review position, say. But if there is a wrong, then it should be fixed. And according to your expressed desire to see the state remove itself from the whole marriage business, I take it you do see one. But the Legislature isn’t doing anything, and a case is brought before the Court. What is the Court to do? As Marshall said in Marbury, “it is emphatically the province and duty of the judicial department to say what the law is,” & the MA SJC has said that the fundamental law of Massachusetts cannot permit this unequal treatment. If you believe there’s a wrong, that’s pretty much the end of the story. I suppose you could think there is a wrong, but that the MA Constitution doesn’t prohibit this wrong. I guess the difference between you & me is that I do see this wrong as prohibited by the Federal Constitution--although I’ll admit I’ve never actually given Goodridge or the MA Constitution a close, thorough reading. At least I think I’m finally coming to understand your problem/position. Or I will if you could say something like the following— I agree with the end, but not the means, of Goodridge. That is, I do not object to the outcome of Goodridge, insofar as it corrects a discriminatory & undesirable policy. I do, however, object to what is, in my view, their legally flawed reading of the MA Constitution, which results in the judiciary’s usurpation of the legitimate powers of the legislature. The good that comes from the end of this wrong is not outweighed by the damage to the integrity of our political processes. I’d still disagree with you, but I’d understand your position far better. As it is, I remain unsure whether your dislike of Goodridge stems from its result, or from the road the SJC traveled to reach it. And my next question would be—Ok, so you want the state out of the whole marriage business. But you don’t feel the judiciary can legitimately end this injustice. Why are you not troubled by its continuance while we wait for the majority & legislatures to come around to & fix it? I understand your point about the Civil Rights Act of 1964 actually effecting far more change than did Brown, and the facts back it up (segregation, statistically, was nearly every bit as bad in the early 60s as it was pre-Brown in the deep South). Still, I firmly believe that Brown was an important factor in changing our Country’s landscape to make the 1964 act imaginable. I think Goodridge & Lawrence could well exert a similar influence over the next several years. Again, no rush to respond. Best of luck with the write-on.

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