In the way of book reviews, I've been reading a book about the Supreme Court entitled The Nine. ( a cryptic characterization indeed, if the author is a Tolkien fan)
It is the first book I've ever read devoted wholly to the Court and its personalities. All previous attempts to educate myself on the subject have been defeated by a lack of interest in the subject. I am aware of the significance, but law has a sedative effect on me.
Perhaps because the book focuses more on the justices who comprise the court, as opposed to the parched machinations of the proceedings themselves, I have been both intrigued and appalled at what I read.
In the way of disclaimers, I perceive a center to middle left bias in the approach of the author, which is to say, he is both an amalgam and a representative of relativistic, apathetic American morals. So I keep a cipher of salt close by as I read. He does appear to make an attempt at even-handedness, which makes the casual narrative of the nine's evolution and devolution more convincing and more outrageous.
I know and am thrilled at the upward swing given to us by Bush in Roberts and Alito. They join the outnumbered consistency of Scalia and Thomas, and it tips the balance right, more often than not, when you throw in the follower Kennedy.
But I am confused on several points. Do we, as conservatives, like or dislike judicial activism?
I think the proper answer is a vehement one. We shall have nothing to do with those who legislate from the bench!
But it appears we secretly wink at the bent of Scalia, and Thomas (whom the author contends is a country mile right of Scalia. Scalia even humorously expounded on the difference between Thomas and himself, "I am an originalist, but I am not a nut.")
No, this does not mean I disagree with their philosophy, but it causes me to question whether the ideal of "strict constructionist" equated to "conservative" is the result of sound legal knowledge or wishful thinking.
What I mean is, Scalia and Thomas, both of whom I am very grateful to have on the high court, have a lens through which they view the Constitution. And well they might, they're not computers, they are flesh. But to me the term, strict constructionist, implies a clinical detachment from the moral aspects of each and every case they accept, and maybe one day they will replace the nine justices with a supercomputer with a constitutional hard drive and an exhaustive precedent database. In my opinion, there is an element of hypocrisy when conservatives say they only want strict constructionists appointed to the bench. For my part, I want the justice to revere the law of God above the law of America, which, yes, many times will coincide. But, the point is, if the justice holds no fealty to any creed aside from the Constitution of the United States, he will disappoint Christians, at some point, on a grand scale.
(By the way, if someone has a better understanding of the conceptual strict constructionist, please opine. I certainly haven't studied the issue in depth.)
Interpretation of the law will dictate what a justice decides. And almost all of them have a predetermined philosophy which creates a fairly consistent voting record, in many cases regardless of the technical legal merits of any given case.
The worldview of Scalia, Thomas, Roberts and Alito seems to dictate how they will come down, ditto for Ginsburg, Breyer, Stevens and Souter. Kennedy is the swing vote, the moderate, the justice to be courted. If a plaintiff can get through to Kennedy, he has won the case in most instances. Which is what I set out to talk about.
The author focuses a great deal of attention on a former justice, Sandra Day O'Connor.
Perhaps more than any other justice, she brooked no partisan morality. And no, this was not because she personified the elusive ideal of the strict constructionist. It is, or was, rather, because she unabashedly sought to rule in the favor of public opinion.
O'Connor is a very likable woman, from all accounts.
She has dealt admirably with the onset of Alzheimer's in her husband, John, refusing to relinquish care of him to anyone but herself. She is an engaging, phlegmatic but quirky socialite. She appears to like everyone. She was very close to Chief Justice Rehnquist, close enough to be grief-stricken at his passing, with no regard for their disagreements. She coyly dismisses the rhetorical rants of Scalia. "That's just Nino."(her nickname for Scalia) Translation; "Isn't he a silly old bear." She was thrilled at the nomination of John Roberts, despite the great divide in their judicial philosophy.
She was also, according to the author, elated with the election of Bush in 2000, because, as her husband let slip at an election bash, she was troubled at the prospect of vacating her seat during a Gore presidency. In fact, when the networks prematurely handed the election to Gore, she declared, a bit intemperately for her, "That's terrible."
But as time wore on, and Bush proved to be considerably different than the bland, insipid weather vane she had assumed him to be, she grew increasingly antagonistic toward the administration of the man whose father had nominated her in the first place.
Her disenchantment with Bush seemed to follow the trajectory of public opinion. But she would see no problem with that. She was simply representing the views of America, after all.
It is such a reasonable way of looking at things. Certainly no latent liberalism in the manner of Ginsburg, a curmudgeon of the left if ever there was one. No conscience stricken hand wringing ala Souter. A Republican to be sure, but a Republican able to see the subtleties of issues that escape ideologues such as Clarence Thomas, the angry black man. No extremes, just judicial conferment of the will of the people.
Her seat has been filled by Samuel Alito, a right-winger Bush managed to drag through the nomination proceedings. (We can hope that Alito and Roberts do not fall prey to the same high-minded global notions that afflicted O'Connor.)
Her strategic position as the swing vote is now in the possession of Anthony Kennedy, who is probably not quite as finessed as O'Connor when it comes to discerning which way the wind is blowing. He appears to be a little more distracted with the constitutional merits of a case, if not with the moral implications.