No - here is what people think of our Supremes:
wsj.com
December 11, 2000
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What's the Law For?
With the course of an American presidential election changing by the hour across four weeks in the state of Florida, it is hard not to think that the U.S. political system has spun out of control. And for all the time spent watching the affair live on television, it has been hard to see much meaning beyond the battling teams of lawyers. But with Saturday's stay of the counting by the U.S. Supreme Court, and as the High Court gathers the Bush and Gore lawyers before it this morning, it seems an appropriate moment to comment on the role of the American legal system in this extraordinary event.
Democrats and liberal commentators are making much of an apparent role reversal in Florida, whereby conservatives cheer the Supreme Court's "activist" overturning of a state supreme court. The idea is that conservatives have railed for decades against activist judiciaries but are cynically content to accept the benefits if it delivers a presidency.
Nebraska's Democratic Senator Bob Kerrey, who we expect is laying the ground here to run for his party's presidential nomination in four years, put the matter clearly on the weekend: "It would be one thing if this were the Warren court. This is the Rehnquist court. That court that has established in case after case the principle of state sovereignty."
We think that Mr. Kerrey and the rest are misstating the larger significance of the role that the law and the courts have been forced to play in the Florida events. Justice Scalia, as is his wont, clarified the underlying issue bluntly in his concurrence with the Saturday stay: "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." That is, changing the rules in the middle of the game is judicial activism; opposing that is judicial restraint.
Indeed, there is a larger point to be made here about the law, and one can paraphrase Justice Scalia to make it: Leaning on the law until it produces outcomes you desire is not a recipe for producing a legal system that has the public acceptance democratic stability requires.
By noting what they think is a role reversal in legal philosophy here, Democrats and liberals are of course implicitly acknowledging that it is they who have most ardently supported expansive judicial decisions, most often in pursuit of what they have felt to be some public good, which, right now, should trump any prior legal precedent. Thus in Florida, "every vote counts," no matter what the standard, should trump whatever Florida law or standard existed on November 7. It was this indisputable act of legal activism in Florida that the Supreme Court vacated on December 4.
There is a broader, historical battle revealing itself in Florida. As we and others have written for well over 20 years, the Democrats, unable to get what they want by winning votes in legislatures, in Congress or in the states, have legislated through activist courts. The golden age of legislature-based activism essentially ended with the Great Society, and most of what liberals have achieved since has come through activist courtrooms, activist enforcement bureaucracies and Clinton-like executive orders.
This is a long, long way from the legislative arduousness the Founding Fathers thought they were creating. When in time the public appetite waned for grandiose legislative enactments, Democratic liberals became impatient with the difficult system we had for almost 200 years and found a way to create an alternative system -- court-based legislation.
Now, if you are a liberal Democrat, you see nothing to apologize for here. But conservatives warned repeatedly that using the legal system for large social purposes meant to be debated and concluded in the elected branches of government in time would breed public cynicism about the courts and the law. All this was before the emergence of plaintiffs lawyers using the legal system to extract grandiose settlements for "damages" against huge classes of victims, as in the tobacco suits made famous in Florida and elsewhere.
The plaintiffs bar knows no self-restraint. The trial lawyer ethos is to contort the rules to your benefit. They are all about finding, or inventing, new causes of action. Today everyone from corporate executives enduring plaintiffs suits against their stock price on down to inner-city residents believe that the legal system is essentially a game rigged by lawyers. And now, allied explicitly and financially with the Democratic Party, trial lawyers have now found a cause of action to overturn an election.
It is not enough for Democrats to scream that Florida is about simple fairness. That is rhetoric, and perhaps powerful rhetoric. But it is not the law. This is the crucially important distinction that Florida Chief Justice Charles Wells, a Democrat joined by other Democrats, drove home in his dissent.
So it has come to pass that an impossibly close presidential election teeters on the fulcrum of this long-running argument over the proper role of the law in American society. And it is perhaps ironic that this great issue now rests on the meaning of Article II, Section 1, Clause 2 of the U.S. Constitution, which established the role and the authority of state legislatures, that is, the state law-making bodies, in creating the nation's highest elected official.
Either that piece of the U.S. Constitution means what it expressly says, as the Supreme Court suggested last week, or it means nothing, or whatever you or I think it means this year. If the Supreme Court somehow concludes it is now the latter, and that the next President may be discovered among the Florida dimples, then public sentiment toward the uses of our laws and courts won't be what it was last week. It will be even worse. |
