Go ahead, bash the judges, just don't kill them

I read this article in the NYT this weekend and made a mental note to consider posting about it. Just today, I was looking through old post drafts that never made it onto the blog (I counted about thirty) and spotted one that I could profitably recycle in connection with it (the original post was called "Go ahead, bash the courts"--altered slightly as you can see). So, here goes.

There are a couple of things in Liptak's piece here worth a note or two, starting with its overblown, alarmist premise. The first paragraph suggests that speeches given recently by Justices Sandra Day O'Connor and Ruth Bader Ginsburg are indicative of change in the tenor of public comments by Supreme Court justices. I've remarked recently about the absurdity of inferring a trend from only a couple of data points, but what's wrong here is the notion that these two speeches represent any kind of departure into political position-taking. Kermit Hall's comments are especially ridiculous and marred by innuendo. What Hall calls "real, real close to taking a political position," in O'Connor's case is saying that in a liberal democracy an independent judiciary can and should serve as a protection against tyranny. So controversial, so politicized is this perspective that it appears in every American government textbook. Even referring to the onset of dictatorship shouldn't be controversial. Hamilton, in Federalist 78, argues that an independent judiciary capable of declaring legislation unconstitutional is essential to the notion of limited government and doesn't imply a superiority of the courts to the Congress, because all it does is declare the superiority of the people's choices to those of their (minority, possibly unrepresentative, even self-interested) representatives.

Ginsburg's "political" violation of judicial decorum is to discuss legal theory and methods of interpretation, something justices do all the time in speeches and writings. "(A)nd she is using an out-of-country venue to make her point," as Hall says, insinuating that these comments are somehow treasonous. I guess Puerto Rico, where Scalia's comments were made, is sufficiently within the United States to establish his loyalty to the country.

Scalia's comments attacking the notion of a "living constitution," by the way, engage in a bit of sleight of hand as well. Of course, one would have to be an "idiot" to think that the Constitution is a living organism and not a legal document, taken literally. But misstating a position through excessive literalism, although something a textualist like Scalia is probably prone to, isn't the same as engaging it. Scalia even trips on his own strategy. As a legal document, Scalia remarks, the Constitution "says some things and doesn't say others." But, of course, the Constitution doesn't say anything, you have to read it. Scalia may imagine some kind of Harry Potter talking Constitution that says things, but the rest of us in the "non-idiot" community know that documents don't talk.

Am I being argumentative and obtuse? Sure, but no more than Scalia. Every "living Constitution" proponent agrees that the Constitution "means" certain things and doesn't "mean" others (what Scalia meant to say, I'm sure), the question is what it means. In this occasion, Scalia doesn't feel like addressing that real, difficult question, though.

I don't know what to make of Hall's statement, regarding O'Connor and Ginsburg's wayward comments, that it should be "striking that both are women."

As to the question of threats to judicial independence, I'm reminded of Edward Lazarus' commentary on Findlaw last year taking issue with some of the criticisms leveled at Justice Sunday II, the conservative religious media spectacle criticizing the judiciary. Like Lazarus, I disagree with pretty much everything the Family Research Council pushes a position on, but Lazarus is right that many of the responses to their events were off-base. The judiciary has almost nothing but fair-weather friends, but that doesn't mean its OK to dismiss criticims against it as improper assaults on "judicial independence."

Lazarus makes several good points. The "countermajoritarian difficulty" should get more scrutiny outside of the law professoriate (where, oddly enough, it should probably get less). Also, many of the problems people have with judges are due to "judicial overhang" or the tendency of the political branches to take advantage of the presence of judicial review. Because the courts can prevent the bad consequences of poorly crafted law and use judicial discretion to make up for legislative and executive inattention, Congress and the president are freer to be irresponsible.

Nevertheless, a comfortable space should be maintained between criticizing judges for their policymaking activities and threatening them, either physically or in some other way.