Over at the League, Mark Thompson (an actual lawyer!) and I published a pretty interesting dialogue on judicial legitimacy, cultural change, and originalism in the wake of the Iowa gay marriage ruling:
The courts have a certain amount of judicial capital – i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this erosion of public trust by compromising judicial independence – through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. etc.- thereby undermining the judiciary’s ability to enforce constitutional law.
As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.
Check out the whole thing here.
The idea of prosecuting hate crimes has always seemed vaguely distasteful, but this sort of thing gives me pause (via):
Like countless other Americans that night, a group of young Staten Island men gathered on Nov. 4 to watch election results, and then took to the streets when it became clear that the country had elected its first black president.
But, the authorities say, they were not out to celebrate. Armed with a police-style baton and a metal pipe, they attacked a black teenager, pushed another black man, harassed a Hispanic man and, in a finishing flourish, ran over a white man who they thought was black, leaving him in a coma, the authorities said.
Given the racially charged nature of these attacks, I think the argument for hate crimes prosecution is reasonably persuasive. Targeting racial or religious minorities incurs serious psychological harms that may warrant additional punishment. I suppose it’s possible to argue that quantifying psychological or emotional injury is extremely subjective and therefore shouldn’t be parsed in a courtroom, but plaintiffs seek financial redress for emotional damages all the time. So if we’re going to let people to sue for monetary compensation, shouldn’t we implement a similar calculus to punish racially-charged attacks?
Filed under Race, The Courts
I’m afraid that Jim Geraghty comes off best in this exchange, taking Andrew Sullivan’s eager young things to task for endorsing Obama’s plan to shut down Gitmo. Despite agreeing with Patrick Appel and Chris Bodenner on the merits of the issue, I think their argumentative approach is pretty unpersuasive. If moved to Leavenworth or South Carolina or wherever else, it stands to reason that a few detainee combatants (some of whom are quite dangerous) may escape. This is probably less of a danger than with domestic prisoners – I imagine cultural differences make it difficult for foreign escapees to go to ground – but it’s something worth considering nonetheless.
I know I sound like a broken record, but the way to win these debates is not to deny the real security risks associated with policies that respect the essential dignity of enemy combatants, recognize Americans’ right to not be eavesdropped on by the federal government, or emphasize the importance of certain minimal standards of humane treatment. In much the same way that Geraghty’s colleagues would probably dismiss the pragmatic case for legalizing abortion as less important than the moral implications of murdering innocent fetuses, advocates of humane detainee treatment ought to be able to explain why the moral and judicial rationales for shutting down the legal black hole that is Guantanamo Bay outweigh our opponents’ real (if frequently overblown) practical objections.
UPDATE: I take it all back – the awesome “Con Air” reference wins the day for Team Sullivan.
Courtesy of Tim Lee at Cato:
If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.
Do read his entire take-down of the WSJ’s latest on FISA and warrantless surveillance.
Andrew Sullivan fisks Kristol’s latest on torture and presidential pardons. Obviously, I don’t want to see anyone implicated in torture get away scot free, but focusing on lower-level implementers – rather than the policymakers who implicitly or explicitly authorized their actions – strikes me as a bad idea. CIA agents who participated in waterboarding were probably operating under the assumption that what they were doing was both legal and necessary. The same goes for the NSA analysts who wiretapped phone calls without prior judicial authorization. Given the climate of political urgency immediately following 9/11, I think most low-level implementers should benefit from some legal latitude.
So in one sense, at least, Kristol is right. A public witch-hunt that hones in on a few hapless CIA agents misses the larger issue of the Administration’s complicity. As a matter of pragmatic politics, I also think going after a few big fish would be less divisive than the alternative. Low level bureaucrats following orders in the wake of an unprecedented national tragedy are actually pretty sympathetic figures. Bush Administration flacks who had access to the requisite legal background and were responsible for implementing an abusive interrogation policy, on the other hand, are not only more guilty, they’re also easier targets. Going after low level scapegoats is usually the path of least resistance, but Bush’s legacy of incompetence has laid the groundwork for holding people accountable. After eight years of disastrous mismanagement, an unforgiving public is a lot less likely to extend the benefit of the doubt to Administration higher ups.
If anything, the latest Obama “bombshell” has made me more likely to vote for the guy. From it, we learn two things:
- Obama has a nuanced appreciation of the courts’ lack of democratic legitimacy. This is especially important because it says something about the way his administration would approach a vacancy on the Supreme Court. If you believe that the courts are ineffective at promoting broad social change (a notion popularized by conservatives), you’re a lot less likely to appoint judges bent on implementing radical political reform from the bench.
- He believes that a redistributive program is an appropriate response to our country’s problematic racial history. As a matter of first principles, I’m not sure why this is controversial (and I’m a freakin’ libertarian!). Ensuring perfect equality of opportunity may be a chimera, but given the United States’ legacy of institutional and social discrimination, a redistributive program aimed at historically-marginalized groups is not a particularly radical suggestion. I can think of several pragmatic objections to this sort of thing, but it’s not like it’s some unprecedented Marxist land-grab.
It’s also worth noting that in this context, a redistributive program to address racial inequality could mean any number of things, including fairly mundane (if objectionable) measures like affirmative action. Again, it’s not like Obama’s statement is totally unheard of. People should chill the f*ck out.