Blog on the Run: Reloaded

Wednesday, June 27, 2012 8:47 pm

So much for the rule of law


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The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

Only eight of them predicted the court would do so.

So despite near-unanimous agreement on what the nation’s highest court should do given the relevant facts, law and judicial precedents, fewer than half believe that this court will actually do what it should. Put another way, all that stuff about judicial restraint and stare decisis  and “No judicial activism!” that we’ve been hearing from conservatives ever since Brown v. Board of Education is officially crap. Just for the record.

Of course, we’ve seen this coming since Bush v. Gore, when the conservative majority decided that allowing all legally cast ballots to be counted constituted an irreparable harm to George W. Bush. Justice John Paul Stevens’s dissent remains relevant:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

7 Comments »

  1. Actually, an undue focus on stare decisis by the Supreme Court can result in judicial activism as it is the words of others rather than those of the Constitution that inform the Supreme Court.

    It is just such an over reliance on stare decisis in the form of Wickard v. Filburn that leads your 19 of 21 law professors astray. They rely on the words of others rather than the Constitution. But, then, liberals tend to gravitate toward such thinking as it allows our nation to drift away from the constraints of a constitution of limited governance.

    But, what good is the Constitution if we no longer reference it but, instead, the words of others?

    Comment by Jeri Johnson — Wednesday, June 27, 2012 10:07 pm @ 10:07 pm | Reply

  2. And who decides what’s undue? Jeri Johnson, the Red Queen of the Greensboro blogosphere? No, I think not. The professors surveyed cover a fair bit of the political spectrum; moreover, the point isn’t necessarily what they think, it’s the gap between what they think is right and what they think the court will actually do.

    And if you want to play originalist, show me where in the Constitution it says that corporations – which, unlike, say, AR-15s, were well-known to the Framers – have the same rights as natural persons.

    Smarter trolls, please.

    Comment by Lex — Wednesday, June 27, 2012 10:25 pm @ 10:25 pm | Reply

  3. Troll? Allow me to answer your current questions and I’ll leave you to your solitude.

    “Who decides what’s undue?” I realize authoritarians turn to and look for “who” but there is no “who”. We have a society in which such decisions percolate through our representative government. Whether it is the president we choose to represent our interests regarding the Supreme Court or those we choose to advise the president — we decide. If anything, the who is all of us. And as one of us I lend my voice in the matter. What a group of un-elected professors think in this matter is a red herring or a straw man. Take your pick.

    Citizen’s United – One can not silence a corporation without silencing a freely assembled group of individuals. Try it some time.

    2nd- The weapon does not matter, defense from one another and more importantly, tyranny does. What was known to the framers was the difficulty in defending one’s freedom from authoritarians whether they be individuals or united in government.

    Comment by Jeri Johnson — Wednesday, June 27, 2012 11:42 pm @ 11:42 pm | Reply

  4. 6-3.

    Comment by Roch — Thursday, June 28, 2012 12:18 am @ 12:18 am | Reply

  5. Jeri, you throw around words like “authoritarian” as if they don’t actually have an agreed-upon meaning. You suggest that we choose who will advise the president. You have argued, on the basis of exactly zero evidence, that FDR’s countercyclical deficit spending caused the 1937 recession, when in fact that recession was caused by efforts by Roosevelt and the Congress to reduce federal deficits prematurely, while consumer demand was still too low to be self-sustaining.

    In short, you’re parroting shit you’ve read without understanding what you are saying, let alone why it’s wrong. If you’re not a troll — and I’m actually giving you the benefit of the doubt in saying you are, inasmuch as the term implies you’re at least intelligent and/or aware enough to know that what you’re saying is horseshit — then you’re way too stupid and/or uninformed for me to waste my time on. Run along, son; the grownups are talking. We’re done here.

    Comment by Lex — Thursday, June 28, 2012 8:55 am @ 8:55 am | Reply

  6. “So despite near-unanimous agreement [by 19 of 21 surveyed Constitutional Scholars] on what the nation’s highest court should do”

    This survey is so flawed that the results are meaningless. It’s not even worth discussing.

    http://www.volokh.com/2012/06/26/poll-shocker-majority-of-liberal-law-professors-believe-mandate-is-constitutional/

    Comment by Pete — Thursday, June 28, 2012 5:36 pm @ 5:36 pm | Reply

  7. Well, it’s all academic now, anyway, Pete. Of course, the ruling was intellectually incoherent and Roberts will make up for this next term by killing the Voting Rights Act or something next term, but for today, I’ll take it.

    Comment by Lex — Thursday, June 28, 2012 7:37 pm @ 7:37 pm | Reply


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