Good morning, Dahlia,
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StumbleUponWhen we left off our Supreme Court conversation last week, you were agonizing over the Supreme Court's Atkins decision barring states from executing the mentally retarded. I had every intention of turning us this morning to a number of lighter topics, briskly treated. But having reread Atkins over the weekend, I need to comment further.
Yes, I am deeply relieved that we are no longer going to execute the mentally retarded in this country. But I am also troubled by the inability of the majority in Atkins to articulate any remotely convincing, reasoned legal basis for its decision. There may be sound judicial bases for invalidating execution of the retarded, but they do not appear in the Atkins opinion. It is also striking—and indicative of the court-centeredness of this court's view of the Constitution—that none of the justices, on either side of the debate, acknowledges that Congress would be a more appropriate national institution than the court to review and restrict questionable state executions.
The majority's argument in Atkins (which is thoroughly savaged by Justice Scalia's dissent) appears to be roughly: The Supreme Court may set aside the laws of 20 states on the basis of the contrary opinion of the 30 other states, as long as the Supreme Court finds "no reason to disagree" with the 30 "better" states. And as the chief justice notes, the court's opinion is no more convincing when it begins counting in the anti-execution views of foreign countries, religions, professional groups, and polling results.
The problem with having five unelected justices make this decision about cruelty is that the key elements of the decision are essentially legislative in nature. The national institution that is far better suited than the court to evaluate the existence of such a social and moral consensus is Congress. Although the dissenters (the chief, Scalia, and Thomas) make a powerful case in Atkins that these judgments about cruelty are legislative rather than judicial in nature, they are ironically the very justices who have in recent years rejected the notion that the national legislature, Congress, has greater institutional capacity than a court to make moral, social, and economic judgments. Joined by Justices Kennedy and O'Connor in cases like Morrison (striking down the congressionally enacted Violence Against Women Act), the chief and the other Atkins dissenters have emasculated the power given to Congress by the post-Civil-War amendments, a power designed to permit the elected national Congress to bring laggard states to full protection of liberty and equality rights, including the right to be free of unusually cruel punishments.
Thus, there could scarcely be a more unintentionally ironic sentence than the chief justice's dissenting statement in Atkins that "in a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." With Congress reduced to a subservient role by the Rehnquist Court, it should not be surprising to see a rare liberal/moderate majority of justices in Atkins seize for itself a national legislative responsibility that properly should have been exercised by Congress.
The key to the extraordinary, across-the-board activism of the present court is the role played by Justices Kennedy and O'Connor. They both vote with the more conservative justices (the chief and Justices Scalia and Thomas) to strike down acts of Congress that are judged to interfere with state sovereignty and then often turn around and vote with the Justices Stevens, Souter, Ginsburg, and Breyer to strike down a wide variety of "illiberal" state laws. The net result is that these differently constituted majorities of the court wind up substituting judicial judgments—sometimes liberal, sometimes conservative—for legislative judgments at an unprecedented rate. Because this court's overall philosophy is somewhat politically moderate, the effect of its extraordinary assertion of judicial supremacy has not made a striking impact—yet. Just wait a decade.
Regards,
Walter
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Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)