Saturday, April 10, 2010

The plumb and the pendulum and the rule of law

John Paul Stevens' unexpectedly liberal legacy It has just been reported that Justice John Paul Stevens has formally announced his retirement, although it has been well telegraphed.

The LA Times has an interesting perspective, and there will be many more considering the opposing political leanings of the Court.
The Supreme Court career of John Paul Stevens could not have been easily predicted in 1975 when he arrived as a Midwestern Republican with a background in corporate and antitrust law.

A World War II veteran, he wanted no part of defending pornography as a free-speech issue: "Few of us would march our sons and daughters off to war to preserve the citizen's right to see . . . sexually explicit 'adult' movies," he wrote in his first major opinion. Having replaced liberal Justice William O. Douglas, Stevens also cast a key vote in his first year to restore the death penalty after a four-year ban.

But since the mid-1990s, Justice Stevens has been the leader of the court's liberal wing and its strongest voice for progressive causes. He supported a strict separation of church and state and vigorous enforcement of laws to protect civil rights and the environment.

He championed clear limits on the "influence of big money" in American politics. "Money is not speech," he said, but property subject to regulation. And two years ago, he called for an end to "state-sanctioned killing," saying that the "real risk of error" made the death penalty no longer acceptable.

So what changed? Did Stevens become more liberal over three decades, or did Stevens hold to the center while the high court shifted right in response to appointments by Presidents Reagan and George W. Bush?

As Stevens saw it, he held to the center.

Guambat appreciates that there is politically philosophical tension on the Court. There is tension in the country and always (fortunately) has been.

Free people will never wholly agree, but our democratic institutions are intended to hear and hammer at the differences to come up with solutions by which the disagreeing parties can agree to be commonly governed.

A commentator, Ellen Ratnor, with FOXNews (of all places) seems to agree:
With a Supreme Court that leans very much to the right, it is important to make sure there is some balance and Obama can't take a chance on a real middle of the road candidate.

Getting back to the LA Times piece, the article concludes,
As [Stevens] wrote in his dissent in the famous Bush vs. Gore case that decided the 2000 presidential election, "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law."

Using this "rule of law" notion as a segue, Guambat also caught sight of this unrelated politically but not-so-unrelated philosophically article in the Canadian Globe and Mail:

Rule of law is Israel’s Achilles heel
Interestingly, the issues that have caused Mr. Netanyahu the most grief have all been concerned with matters of international law.

Irwin Cotler, a former Canadian justice minister and an expert on international law, attributes much of the legal approach regarding these issues to the U.S. President.

“Obama is a rule-of-law President,” Mr. Cotler said, noting the President, a former constitutional law professor, also has emphasized other legal issues such as torture and the Guantanamo detention centre in his agenda.

When it comes to Jewish settlements in the West Bank and east Jerusalem, the issue that has most clouded Israel’s relations with the United States, it’s the first time they’ve been viewed primarily through a legal prism, he said.

“Past U.S. administrations viewed the settlements as ‘ill-advised’ or as ‘obstacles to peace,’ but not usually as illegal.”

“But Obama sees them as illegal,” he said.

Guambat is a big believer in the rule of law. Not because law is immutable or necessarily correct in all places and for all time, but because it is the agreed interface between the will of the majority and the willingness of the minority to consent to being governed.

Majorities and minorities morph and swing back and forth over time and gradually the law goes along. Law allows this process to take place without insurrection. When we are ruled by men (the prerogative of a majority) without reference to law (the rights of the minority), we value rebellion over governance.

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