August 06, 2007

Simon Lazarus polemic

As the punditry dust continues to settle in the aftermath of the lastest Supreme Court term, it is helpful to rebut some of the false accusations launched against the Roberts Court.

Simon Lazarus of the National Senior Citizens Law Center, in his American Prospect article, "More Polarizing Than Rehnquist" (May 2007), unfortunately dishes out a plateful of misinformation.

I will put to one side for now Lazarus's dubious political opinions (e.g., his apparent equation of following the Constitution with being "transparently driven by political ideology, constantly pushing doctrinal envelopes to overturn or undermine liberal laws and policies, mirroring the 'liberal activism' ritually decried by conservatives"). Rather, I will content myself with pointing out some factual errors, omissions, and inconsistencies in his article. The reader can then decide whether Lazarus's opinions can stand up.

1. Gonzales v. Oregon -- Lazarus says this case involved "former Attorney General John Ashcroft's attempt to nullify, by regulation, Oregon's physician-assisted suicide statute." Not quite. What the so-called Ashcroft directive did was explain that using federally controlled substances (e.g., narcotics) to kill people was not a valid use of those substances under federal drug laws. If Oregon physicians wanted to prescribe poisons to kill their patients, they had to prescribe something other than drugs covered by the Controlled Substances Act (CSA). The case ultimately turned on the fairly technical statutory question whether the Ashcroft directive was properly authorized by the CSA. A majority said "no"; the dissenters, including Chief Justice Roberts, said "yes". The dissenters did not "vot[e] to invalidate the Oregon legislature's handiwork" or to "impose [a] value judgment on the peopler of Oregon," as Lazarus distorts the matter. Rather, they read the CSA, as adopted by Congress, as including the commonsense and historically longstanding proposition that killing patients is not legitimate medical practice.

2. Rapanos v. United States -- In this case, the Justices split 4-1-4 over the proper test for deciding whether certain "wetlands" fell within the scope of federal jurisdiction under the Clean Water Act. Justice Kennedy, who cast the deciding vote, was alone in proposing a "significant nexus" test for assessing wetlands. Lazarus faults Chief Justice Roberts for not joining Kennedy's solo concurrence. But presumably the Chief Justice sees his obligation as adhering to the law, not joining opinions just for the sake of coalition-building. The Chief Justice -- like every other Justice on the Court -- presumably disagreed with the proposed Kennedy "significant nexus" test. That's a fault? If so, it is one of which all of the other eight Justices, including the four liberals, are guilty. Lazarus also faults the Chief Justice for assigning the pluraltiy opinion to Justice Scalia. But that Justice successfully drafted an opinion that held all four members of the Court's plurality. There is no rule that Justices with strong opinions or forceful writing styles should not get opinion-writing duty.

3. Parents Involved in Community Schools v. Seattle School District No. 1 -- Lazarus, writing before this case was decided, contended that the "conservative" thing to do would be to defer to local school boards and thus uphold the schools' race-based pupil assignment policies. This assumes, mistakenly, that a "conservative judicial philosophy" means letting government authorities disregard constitutional norms. While that may be a liberal critic's caricature of judicial conservatism, in fact a "conservative judicial philosophy" entails following the Constitution, like it or not, instead of a subjective, evolving, "gloss" on the Constitution. Lazarus makes the astounding claim that "Clinton appointees Ginsburg and Breyer . . . consistently emphasize deference to democratic institutions," adding that Justice Ginsburg once criticized Roe v. Wade. Of course, neither Ginsburg nor Breyer were willing to defer to democratic institutions on the issues of homosexual sodomy or partial birth abortion. And while Ginsburg may have critiqued the methodology of Roe, she most certainly adheres to its anti-democratic, pro-abortion result. Yet that, according to Lazarus, is "moderation".

* * *

Two other Lazarus contentions deserve a response.

First, Lazarus says that "[r]estoring a 'truly' liberal (i.e., activist) Court is simply not an option." This ignores the fact that there are already four dependable liberals on the Court, and that in 2008 a Democrat may emerge as the next President. Such a president could easily appoint a liberal fifth vote upon the retirement (say, for health reasons) of one of the other five Justices. That would leave the Court with five votes committed to the ideas that abortion should be without legal limits, that any opposition to the homosexual agenda represents intolerable bigotry, and that the power of Congress to encroach on local affairs by regulations is essentially unlimited, to mention just three topics. Four Justices are already on record in support of these positions. We are a hair -- and perhaps an election -- away from an unstoppable liberal bloc.

Second, Lazarus waxes into full hypocrisy on the question of reining in runaway judges. He labels as "dangerous threats to judicial independence" such accountability measures as impeachment or jurisdiction-stripping statutes. But his gripe is not so much over the goal of holding judges accountable for disagreeable decisions as over the means. Lazarus suggests that a better way to punish judges for having the "wrong" (i.e., non-liberal) positions is to obstruct their nominations in the first place, and, where judges are already confirmed, by denying them pay raises. Incredibly, Lazarus believes this approach will prevent the public from viewing the judiciary as "simply an arena for the pursuit of political ends by other means." It seems more likely, however, that Lazarus's proposals are precisely the pursuit of (liberal) political ends by means of political intimidation. But then, that may be the purpose of his article.

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