Janice Rogers Brown for the Supreme Court!

So, basically, the reason to support JRB's nomination is not because of her qualifications or ideology in and of themselves, but because nominating someone with such an ideology will upset liberals? Upsetting liberals is the highest priority? That might not be the message you meant to send, but it's the one that comes through.

I've read several of Justice Brown's opinions and it's clear why liberals dislike her. She doesn't make things up and is loyal to the Constitution and precedent. She is a Judge and not some philosopher king that liberals love.

"It did have interstate commerce implications, albet probably insignificant implications."

Only if the plaintiffs would have purchased marijauna from someone else. Otherwise creating their own supply has no effect on aggregate demand in the interstate marijauna market. Nothing in the case was presented as evidence that this was so.

The way I see it is that using Scalia's logic any marijauna possession should be a federal offense because according to him it affects the interstate desires of the DEA.

I agree. If you want to get into actual consequences, into the nitty-gritty of the real world and out of pure democratic legal theory, then I'm just as pessimistic as you. For now, however, I was assuming a sort of frictionless environment. Friction complicates the analysis.

I think it's more effective to write a letter to Santa
than Congress or the Prez, Scott.

"Upsetting liberals" is typically synonymous with having an "ideology" I approve of, and such is the case for many others. Not a goal in itself, but a good way of finding people I should support -- hence Sowell's comment. Upsetting liberals is not a good reason for doing something, but it is a good way of finding out what something you should be doing.

Or perhaps more eloquently put by Jonathan Swift:

When a true genius appears in this world, you may know him by this sign, that the dunces are all in confederacy against him.

Just because I may think a case is rightly or wrongly decided has nothing to do with what, as a libertarian, I would prefer. Judges as they say, are meant to interpret law, not to use it to impose their personal political predilections.

Right. And because judges, like most people, have lousy political predilections, it's best to give them as little discretion as possible.

Everglades,

I believe you're conflating two different things. 1. My opinion on constitutional law. 2. My opinion on libertarianism. The two are not identical.

Just because I may think a case is rightly or wrongly decided has nothing to do with what, as a libertarian, I would prefer. Judges as they say, are meant to interpret law, not to use it to impose their personal political predilections.

The hard right theocrats, who seem to hardly bother most libertarians who are reflexively inclined to support Republicans (usually because they hate liberals), don’t give a rat’s hind end about federalism.

Did I imply otherwise?

Scott, you seem like a classic "federalism above all else" libertarian. Individual rights are a luxury afforded by state governments. Tradition, however irrational and ridiculous, is the rule and the federal judiciary has essentially no role other than to look up whether something is literally in the Constitution or not.

I got news for you. The hard right theocrats, who seem to hardly bother most libertarians who are reflexively inclined to support Republicans (usually because they hate liberals), don't give a rat's hind end about federalism. When they finally have control they will expand the federal government even more than Bush already has (an astounding feat indeed) while libertarians hit the snooze button because they seemably have more property rights and less direct taxation.

Check out how much the guys at Washington Monthly are in mortal fear of JRB. One of them even went as far as to post the following as an alias:

"as a white male with a Southern background...I want Janice Rodgers Brown. She is 100% correct when she says that liberalism was the downfall of America. And she's right. Being a white male prior to the New Deal was FUN......being able to beat and torture them uppity nig.....(oh, I forgot..can't say that anymore....more liberal PC)....being able to sleep and impregnate 14 year old girls (my old buddy Strom Thurmond told me "statutory rape ROCKS").......yeah...having been born in 1954....I feel that I missed out on alot of FUN. But maybe with Janice Rodgers Brown...we can go back to them "good old days"....cause I can't stand the thought of eatin' in the same resturant with an IDIOT darkie like her."
(posted by "Rightfielder")

I'm no reactionary "those durn libruls" type, but between garbage like this, and having my view that the Constitution should actually be respected frequently responded to by democrat-leaning types with something along the lines of "you idiot! The constitution is RACIST! You're arguing for slavery if you want limits on government!" -- most recently a couple days ago on a message board -- I'm wondering if we're witnessing the implosion of modern "liberalism", and if so, why it took so long if it's this bankrupt.

Is it your position that a person can be duty-bound to inflict an injustice on others? If so, what sort of “duty” are you talking about and why in the world do you believe that?

Absolutely. That duty is a Constitutional one, and so long as we are speaking of Constitutional matters, it is the Justices' duty to interpret law, not create it, nor impose their own personal predilections as to what is just and what is not on the country at large.

scott, that's
LOVING ET UX. v. VIRGINIA. SUPREME COURT OF THE UNITED STATES. 388 US 1. June 12,1967, Decided. MR. CHIEF JUSTICE WARREN delivered the opinion
www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html
I don't know much about brown, but seems the best of the short list.

Thanks, Vark.

I'm not learned in Fourteenth Amendment doctrine.

However, reading that opinion over, I will say the logic strikes me as suspect; there's a little too much florid writing for my taste. Moreover, the right to marry one of a different race was not historically a privilege afforded to citizens of the United States as a rule. Lacking that basis, it's hard to see how the Fourteenth Amendment applies. The case strikes me as wrongly decided -- but that's from a very superficial reading, in an area of law I'm largely ignorant of.

Whatever her virtues, this defense of her is just sickening:

http://fairjudiciary.com/cfj_contents/press/brown_hearing.pdf

Vomit-inducing. Agreed.

Scheule, do you think the SC decision overturning state interracial marriage bans was properly decided? Often times tradition, especially religious tradition, is very much at odds with individual liberty.

One, I'm loathe to comment on a case without knowing more about it. Do you have a specific case in mind that I could check up on?

Two, keeping my ignorance in mind, the duty of the Supreme Court is to interpret the law correctly -- not to expand "individual liberty" as far as it will go. For instance, suppose the flag-burning amendment passed. Such an amendment doubtlessly infringes individual liberty -- but it is the Supreme Court's duty to uphold the Constitution, and that would include the flag-burning amendment.

If you want to argue that the Supreme Court should blindly interpret the law so as to always expand personal liberty, that's a different argument.

You can call me Scott.

Scheule, do you think the SC decision overturning state interracial marriage bans was properly decided? Often times tradition, especially religious tradition, is very much at odds with individual liberty.

Apologies for the delay, I just got in.

JRB sure talks the anti-liberal talk, but will she really be on the “Catallarchy-correct” side of issues from abortion to medical marijuana to copyright to the ten commandments to eminent domain?

One way to find out. She thinks Lochner was properly decided and she evidently despises government, at least so far as her speeches indicate -- those are libertarian principles. I imagine she's not a perfect libertarian -- but neither am I. Perfection is not a choice, and Utopia is still not an option.

Your rant about eliminationism doesn't make much sense to me. Perhaps you could define the term for me -- I couldn't find it in Webster's or Wikipedia.

On other occasions (e.g. Lungren, a parental-consent case) she has argued for preserving “societal values” that are to be found nowhere in the constitution.

Which is a perfectly valid originalist stance -- one looks to the traditions of society to see if they are longstanding.

She’s a right-wing attack dog, no more a friend to “classical liberals” than to the modern kind, but she hates the right people so apparently she’s OK.

Absolutely not true from what I've seen. See for instance, her speeches "A Whiter Shade of Pale" and "Fifty Ways to Lose Your Freedom."

The Supreme court would ideally feature both Friedmans (milton and that libertarian law professor from Georgetown that everyone likes)...

If you are referring to David Friedman, he teaches at Santa Clara University, last time I checked.

What does bother the left is that Brown specifically does advocate “making stuff up” - choosing personal conscience over law, constitution, and precedent - has argued as much in her opinions, and has explicitly defended this practice on numerous occasions.

Interesting, specific citations?

"What really scares the left about Janice Rogers Brown is that she has guts as well as brains."

I'm not at all impressed with Janice Rogers Brown's brains. Even as far as the hardcore right goes - and her standing as a member of the hardcore social right should hardly make her a libertarian's darling - she's far from the brightest bulb on the tree. As far as I can tell, she was picked in the first place as yet another raw offering to the social conservatives who mostly own this administration's judicial nominations (and to wildly irritate Democrats).

What does bother the left is that Brown specifically does advocate "making stuff up" - choosing personal conscience over law, constitution, and precedent - has argued as much in her opinions, and has explicitly defended this practice on numerous occasions. At the very least, if the court is going to be packed with nuts who are going to hack away at my rights, let them be nuts who can make a halfway coherent legal case for doing so.

When a true genius appears in this world, you may know him by this sign, that the dunces are all in confederacy against him.

I would think that a quote like this applies more to a Noam Chomsky or maybe one of the Left-Rothbardians (whom I've come to admire from here and KC's site). The fact that she's being chosen for the court kind of means that people aren't against her. Were Pat Buchanan to be nominated I imagine you'd see the same vitriol from the left, but it hardly proves that he's a "true genius."

I think they should select judges randomly. I'm serious about this. There should be broad set of qualifications (nothing specific about beliefs or stamps of approval) and a randomness program should select the new judge from the pool. This randomly selected judge would bypass the confirmation hearing (which really just ensures that most judges are vanilla.) The Supreme court would ideally feature both Friedmans (milton and that libertarian law professor from Georgetown that everyone likes), p. buchanan, Ralph Nader, Noam Chomsky, Luke Rhinehart (he's my number one pick, actually), two randomly chosen homeless people, and Sandra Day O' Connor on swing vote duties.

-Matt

I heard a soundbyte of Barak Obahma chastising her for comparing "altruism" of social security to socialism. Since then my opinion of her has been one of "I'd hit it" (in a purely intellectual sense of course)

Thw Swift quote is pleasantly pithy, but isn't it a bit Manichean? After all, there's more than one kind of genius and almost infinite kinds of dunces. Being hated by liberals doesn't really mean someone's a friend to libertarians; consider any arch-authoritarian theocrat wannabe as an obvious example. That's actually the kind of person Bush and the Republicans really want, and I cannot believe that any true libertarian/anarchist/mutualist/whatever would help them out of principle. JRB sure talks the anti-liberal talk, but will she really be on the "Catallarchy-correct" side of issues from abortion to medical marijuana to copyright to the ten commandments to eminent domain? There's no evidence to support that. Spite seems like a much more credible explanation for such support, and spite is what's apparent here. Sticking it to the liberals for its own sake really does seem like the top priority. Whatever sins can be ascribed to liberals, at least they (in the US) never participated in such an eliminationist agenda.

She doesn’t make things up and is loyal to the Constitution and precedent.

If she's loyal to precedent and so much precedent is bad, as so many here are likely to believe, wouldn't that make her a bad candidate. In actual fact she's not loyal to precedent; see Loder v. Glendale, Green v. Ralee, or Little v. Auto Stiegler (all consumer- and investor-rights cases in which she argued that precedent should be abandoned). On other occasions (e.g. Lungren, a parental-consent case) she has argued for preserving "societal values" that are to be found nowhere in the constitution. When it suits her, she too "makes stuff up" as you put it; it's just "stuff" that plays better to a certain constituency. She's a right-wing attack dog, no more a friend to "classical liberals" than to the modern kind, but she hates the right people so apparently she's OK.

While you certainly make a good point Platypus, doesn't it really just boil down to the old "neolibertarian vs. old fashioned libertarian" debate of whether incremental progress is better than no progress, yet standing by your princioples?

If the nominee pleases the theocrats then it should disgust anyone who considers themself a libertarian.

Scott:

Such an amendment doubtlessly infringes individual liberty -- but it is the Supreme Court's duty to uphold the Constitution, and that would include the flag-burning amendment.

Is it your position that a person can be duty-bound to inflict an injustice on others? If so, what sort of "duty" are you talking about and why in the world do you believe that?

Brandon:

Now that I think about it more, though, it doesn’t really seem that there is any way to take discretionary power out of the hands of the judges. Law, no matter how clear, can't interpret itself. Unless we want to give everyone veto power over every law, there always has to be some ultimate authority, or some group of authorities, who can say that black is white and have no one to answer to for it.

Do you think that "Each dispute over law must be finally settled by some authority" entails "There must be some authority that finally settles all disputes over law"?

If so, how is your argument different from the (fallacious) "Every person has a favorite color; therefore there is some Supreme Color that is every person's favorite"?

If not, then why does the fact that each dispute over law must be finally settled by some authority give any reason to invest supreme authority over all disputes over law in any one person or group of people?

(See also: [1], [2], and [3].)

I asked:

Is it your position that a person can be duty-bound to inflict an injustice on others? If so, what sort of “duty” are you talking about and why in the world do you believe that?

Scott replied:

Absolutely. That duty is a Constitutional one, and so long as we are speaking of Constitutional matters, it is the Justices’ duty to interpret law, not create it, nor impose their own personal predilections as to what is just and what is not on the country at large.

So are you arguing that the provisions of the Constitution can make it the case that Brown would be doing wrong to refuse to inflict an injustice on other people? (I take it that having a duty to do a deed means, in part, that refusing to do it would be doing wrong.) If this is an unfair representation of what you said, let me know.

If it is a fair gloss, I can't help but wonder where the Constitution gets the extraordinary authority to undo basic principles of conduct, such as "injustice is a vice" and "you should refuse to indulge in vices."

Exactly right Brandon Berg. The recent medical marijuana case showed how Scalia's personal religion and hatred of pot smoking clouded (no pun intended) his ability to be consistent in a case that had ZERO interstate commerce implications.

Write your Congressmen, write your President. Ask for originalist Justices, or at least Justices who will show judicial restraint.

Is it of course impossible to take discretionary power out of the hands of judges – however, that doesn’t mean we can’t limit the bounds of that discretion. There is room for interpretation, but that room is not infinite.

How? If the Constitution says that all government buildings must be painted white, and the courts say that the shadows and penumbras emanating from this clause mean that they really have to be painted black, who's to say they're wrong? If we give someone else the power to overrule the judges, then he becomes the new Supreme Court. Logically, there must be some final arbiter of Constitutional interpretation, and there's no way we can control from which body parts he does and does not pull his jurisprudence.

is it of course impossible to take discretionary power out of the hands of judges

exactly. That's why judges should be chosen randomly.

Now that I think about it more, though, it doesn’t really seem that there is any way to take discretionary power out of the hands of the judges. Law, no matter how clear, can’t interpret itself.

Is it of course impossible to take discretionary power out of the hands of judges -- however, that doesn't mean we can't limit the bounds of that discretion. There is room for interpretation, but that room is not infinite.

Exactly right Brandon Berg. The recent medical marijuana case showed how Scalia’s personal religion and hatred of pot smoking clouded (no pun intended) his ability to be consistent in a case that had ZERO interstate commerce implications.

I'm not at all sure how Catholicism enters into the Controlled Substances Act. And what is your evidence that Scalia hates pot smoking?

As it stands, Scalia wrote a separate concurrence specifically because, in his words: "activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone."

His opinion was that the Federal Government's activities could instead be justified under the Necessary and Proper Clause.

The recent medical marijuana case showed how Scalia’s personal religion and hatred of pot smoking clouded (no pun intended) his ability to be consistent in a case that had ZERO interstate commerce implications.

Well...not exactly. It did have interstate commerce implications, albet probably insignificant implications. It's just that the power to regulate interstate commerce does not equal the power to regulate anything that has interstate commerce implications.

Now that I think about it more, though, it doesn't really seem that there is any way to take discretionary power out of the hands of the judges. Law, no matter how clear, can't interpret itself. Unless we want to give everyone veto power over every law, there always has to be some ultimate authority, or some group of authorities, who can say that black is white and have no one to answer to for it.

Scott:

In one sense, no, since I am defining Constitutional actions as just, and I assume evil is a synonym for unjust. In another sense, yes, as I imagine the Constitution would bind people to do actions that would typically be seen as evil were they done by other parties.

These are surely not how I was using the words "evil" or "unjust," and not how most speakers of English use them, either. (If they duly repealed the Thirteenth Amendment would that make chattel slavery just? Would it make it non-evil?) In my questions above I was using "justice" to refer to respecting human rights and "evil" to refer to any violation of moral obligations (all injustices are evils but not all evils injustices; cruelty, cowardice, intemperance, envy, etc. are all evils but not injustices).

If the question is whether or not a judge, knowing positively that her sense of justice is correct, should enact an injustice, then the answer is no. But I don't think that has any real world ramifications. If the libertarian theory of justice were true, then we should of course all act like libertarians. But normative verifications aren’t an option.

The question is about rights, not about how we know what rights people have. If a judge has to choose, in a ruling, between (1) respecting human rights and refusing to comply with the Constitution, or (2) respecting the Constitution and refusing to adhere to human rights, then should she choose (1) or (2)?

(The question of how she knows that she's in a situation where the choice is between (1) and (2) is a separate question, which bears on epistemology more than on ethics or on law--it's interesting, but it's not what I'm asking about.)

You seemed to be indicating that your answer was that she should do (2) because she has a legal duty to do so that she's bound to fulfill. But I don't understand why you'd say that. If I've misunderstood you, then it would help me if you'd explain more about what you think makes, say, a duly-enacted law that bans flag burning, or authorizes chattel slavery, wrong; and what you think it is about duly-enacted laws that make them something we, or judges, should care about at all when we deliberate about what to do.

If I haven't misunderstood you, though, it seems like there are two possibilities. (1) We can (somehow) get into a situation where we are required to do things that are evil, i.e. that it would be wrong not to do things that are wrong; the judge in the case above is in such a predicament. Or (2) holding a Constitutional office absolves the holder of ordinary moral obligations not to violate other people's rights, so that by ignoring human rights in favor of the Constitution she isn't wronging anyone. But (2) hardly seems tenable on anything other than a totalitarian view of the law, which I take it you don't hold.

If I have understood you and you do believe that (1) is the case, doesn't that make becoming a judge rather like making a deal with the Devil--you're damned if you do and damned if you don't? Isn't that at most a knock-down argument for never becoming a judge under the present legal order?

If it is a fair gloss, I can’t help but wonder where the Constitution gets the extraordinary authority to undo basic principles of conduct, such as “injustice is a vice” and “you should refuse to indulge in vices.”

That seems a fair gloss. I'm tempted to redefine "injustice" as refusing to follow the law -- but as we are using "justice" to define a Justices' personal feelings as to the just and the unjust, it would probably make things more troublesome to shift definitions now.

So long as that's the definition in place, the answer to the question is the separation of powers, or democratic theory in general. Following someone else's sense of justice is what representative government demands, a deferment of one's own morality for the morality of others, represented by the legislature. Injustice remains a vice, but refusing to follow properly enacted laws seems an equal vice, as it is the imposition of one's personal sense of justice over what is, in principle, the sense of justice that one is supposed to be representing.

Scott:

That seems a fair gloss. I'm tempted to redefine "injustice" as refusing to follow the law -- but as we are using "justice" to define a Justices' personal feelings as to the just and the unjust, it would probably make things more troublesome to shift definitions now.

I'm sorry if I've muddied the waters by not making my questions precise. I wasn't asking about whether or not Supreme Court Justices have a duty to defer their own "personal feelings" about the content of justice to the feelings of someone else (e.g. the legislature or the people at large). I'm using "injustice" here to mean "transgressing against what is in fact just." The issue of whether a judge happens to feel (rightly or wrongly) that a particular law is unjust doesn't come into the question in any interesting way (if the judge were ruling based on a mistaken feeling about justice that would be a different case from the one I'm asking you about). The question is about cases where a judge is right to consider a law unjust.

So, for example, suppose that the libertarian theory of justice is true (i.e., justice is consistent non-aggression; an action is in fact unjust if and only if it involves aggression against person or property). Suppose also that the Congress and the several state legislatures pass bills amending the Constitution to authorize some power that manifestly violates those correct principles of justice by authorizing violence against non-violent use of property (an amendment to ban flag-descretation, for example). And finally suppose that you have a judge who (correctly) believes that the amendment authorizes injustice, and decides to ignore the amendment or declare it void on the grounds that it cannot be justly enforced.

The question is whether you are willing to say that the judge has done wrong by issuing a ruling in which she refuses to inflict injustice on an innocent victim. If you are willing to say that, then I have to wonder how anyone could get into a moral predicament where they are bound by duty to do something evil--i.e. where it would be doing wrong to refuse to do something evil. Does the Constitution have the authority to bind people to do evil? If so, where did it get that authority?

Injustice remains a vice, but refusing to follow properly enacted laws seems an equal vice, as it is the imposition of one’s personal sense of justice over what is, in principle, the sense of justice that one is supposed to be representing.

(1) How do you determine which laws were "properly enacted" and which weren't?

(2) If your answer to (1) allows for some of the laws that you pick out as "properly enacted" to actually require acts of injustice (in the sense that I specified above), then why would you claim that refusing to follow properly enacted laws is always a vice? Don't we usually consider people who refuse to co-operate with evil virtuous?

(Does the fact that the evil is being committed by a government make it even O.K. -- let alone obligatory -- to co-operate with it?)

(3) What's this about "imposing one's personal sense of justice"? If you are convinced that it's just to break into my house and steal all my belongings, and I'm not convinced, and I hit you on the head with a baseball bat when you try to act on your theory of justice, I'm "imposing my personal sense of justice on you" in some sense, but would I be doing wrong to do so?

The issue of whether a judge happens to feel (rightly or wrongly) that a particular law is unjust doesn’t come into the question in any interesting way (if the judge were ruling based on a mistaken feeling about justice that would be a different case from the one I’m asking you about). The question is about cases where a judge is right to consider a law unjust.

If the question is whether or not a judge, knowing positively that her sense of justice is correct, should enact an injustice, then the answer is no. But I don't think that has any real world ramifications. If the libertarian theory of justice were true, then we should of course all act like libertarians. But normative verifications aren't an option.

(1) How do you determine which laws were “properly enacted” and which weren’t?

I use the phrase in the colloquial sense of laws that have made the route through the Constitutionally-prescribed measures.

(2) If your answer to (1) allows for some of the laws that you pick out as “properly enacted” to actually require acts of injustice (in the sense that I specified above), then why would you claim that refusing to follow properly enacted laws is always a vice?

Short of laws being unconstitutional, my answer does not allow for that.

"(3) What’s this about “imposing one’s personal sense of justice"?"

Shorthand for justice not derived from laws. "Morality" would be the better term, and I apologize for not using it.

Does the Constitution have the authority to bind people to do evil? If so, where did it get that authority?

In one sense, no, since I am defining Constitutional actions as just, and I assume evil is a synonym for unjust. In another sense, yes, as I imagine the Constitution would bind people to do actions that would typically be seen as evil were they done by other parties.

The Constitution, so they say, gets its authority from the consent of the governed.

If you wish to have a larger discussion about the legitimacy of social contracts in general, then that is one that will travel far beyond this thread, and a rather pointless one, since I imagine I agree with you. I am an anarchist, after all. But so long as I am having legal discussions, I will presume certain postulates common to political and legal theory -- such as the Constitution is the supreme law of the land.