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
Comments
Posted by: young d | May 20, 2004 2:31 PM
Posted by: Avi Frisch | May 20, 2004 2:50 PM
Posted by: A. Rickey | May 20, 2004 2:53 PM
Posted by: Fr. Bill | May 20, 2004 3:33 PM
Posted by: A. Rickey | May 20, 2004 3:54 PM
Posted by: J | May 20, 2004 5:10 PM