Wednesday, 13 October 2004

"Historical role" my hiney

I would have figured Stephen Bainbridge was too smart to agree with a question with a premise this ignorant of history:

More to the point, will judges be returned to their historical role as neutral interpreters of the Constitution and precedent, or will the imperial judiciary be revitalized and extended for decades?

Judges as “neutral interpreters of the Constitution and precedent”? When, exactly, did the Supreme Court ever act like neutral interpreters of the Constitution? John Jay sat around on his buttocks all day while he was the first Chief Justice, but I don’t think this is the mythical “neutral interpretation” period.

Let’s review Supreme Court history… see if you can identify the “neutral interpretation” period.

  • Marshall, John: Marbury v. Madison, Gibbons v. Ogden, McCullough v. Maryland, Barron v. Baltimore. Uh, nope.
  • Taney, Roger B.: Dred Scott. Nope.
  • Chase, Salmon P.: Ex parte Milligan, Slaughterhouse Cases. Nope. (I suppose you could give him a point or two for Ex parte McCardle.)
  • Waite, Morrison R.: Might be a candidate. He died in 1888, and the court under him didn’t do much.
  • Fuller, Mellville: Plessy v. Ferguson, Lochner v. New York. Double nope.
  • White, Edward: Possible: Hammer v. Dagenhart, Schenck v. United States.
  • Taft, William H.: Possible: Myers v. U.S., Stafford v. Holland.
  • Hughes, Charles E.: “Switch in Time that Saved Nine” era. Not bloody likely.
  • Stone, Harlan Fiske: Well, he didn’t last long, but he gave us Korematsu and Ex parte Quirin, so unless you’re Michelle Malkin I’d have to say his court was controversial.
  • Vinson, Fred M.: Possible; but he didn’t last long either… Youngstown Steel springs to mind as politically important, though.
  • Warren, Earl: Not bloody likely: Brown, Miranda, Gideon, Baker v. Carr… need I go on?
  • Burger, Warren: Furman v. Georgia, Gregg v. Georgia, Bakke v. Regents, Buckley v. Valeo, Roe v. Wade. Not a chance.
  • Rehnquist, William: Bowers v. Hardwick, Lawrence v. Texas, Texas v. Johnson, Casey, Grutter v. Bollinger. Not likely.

So, we have three chief justices since 1801 who may have presided over politically neutral courts, and I emphasize may since that’s likely only because I can’t think of any politically-controversial decisions they made.

Sorry, but I don’t buy the idea that there was ever a neutral period… there may have been a period, perhaps, during which the court’s idea of acceptable social policy comported with that of the particular period’s conservatives, perhaps, but not a “neutral” one by any stretch of the imagination.


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I would have figured Stephen Bainbridge was too smart...

Stephen Bainbridge is a law professor, right?

As a former law student and former practicing lawyer, I’m permitted my opinion, based on my personal experience, that “intelligent law professor” is an oxymoron.

Ok, that’s an exaggeration, to be sure, but the vast majority of lawyers and law profs are much less intelligent than laypersons would like to believe.


Something about forests vs. trees. Yes, it is true that there has never been a perfectly neutral court. No, that doesn’t mean that some courts haven’t done a reasonably good job of applying the law neutrally, while others have done a horrible job. I don’t think Mr. Gray is arguing for perfection.

BTW, Korematsu has been widely cited over the years, not so much by the Michelle Malkins of the world as by judges and legal scholars who disagree with its ultimate holding, but with the tests it ostensibly applied in reaching it.

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