Friday, January 29, 2010

Justice Alito's conduct and the Court's credibility.

It seems that every time Barack Obama gives a SOTU address that someone behaves quite badly.

Last year we had Joe Wilson screaming, "You lie!" as Obama spoke, and the other night we had Justice Alito making his displeasure visible.

Conservative commentators are falling over themselves to defend Alito, pretending that Obama was somehow venturing into new ground by criticising judges. My memory begs to differ. I remember George W Bush constantly harping on about "activist" judges making law from the bench.

And, what Obama was referring to was the most blatant case of judicial activism in the last 100 years. How does Obama pointing this out differ from Bush making the exact same charge?

And is it appropriate that Alito made his displeasure so visible?

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.
The American courts are becoming ever more partisan, with the Bush v. Gore decision split (5-4) along partisan lines and, more recently, with the Citizens United case.

The judges are more often than not voting according to their political beliefs.

And we now have a judge publicly making it clear that he disagrees with what the president is saying.
On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President -- with Republicans predictably defending him and Democrats doing the opposite. Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.
In my country we can only guess at the political beliefs of our judges, in the US their political beliefs are starting to define them. That can't be a good thing.

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