Chief Justice Rehnquist died earlier tonight, aged 80.
I can’t pretend to mourn the man, but neither do I have any stomach for attacking the recently departed on their deathday. Clearly his family loved him, and he had many admirers, and I’m sorry they’re feeling a loss. He was without any doubt a brilliant man, and one whose accomplishments were – unfortunately, in my view – enourmous.
Nor do I have any idea what this means for the Court. (Rehnquist was already an anti-Roe vote, so Bush getting to replace him with another anti-Roe vote won’t change the balance).
Truth is, I don’t really have anything to say, yet. But I thought “Alas” readers might like a place to discuss Rehnquist and the upcoming court battles, so….
UPDATE: Whoops! P-A and I crossposted.
I’ll hold my tongue for a day out of respect.
I disagreed with the man frequently, but, my goodness, he worked right up to the end, didn’t he? Either he had a tremendous work ethic, or he didn’t actually like the thought of being replaced with a Bushite, or both.
The word I’ve heard from thyroid cancer survivors is that there are two varieties of TC, one of which can be managed as a chronic disease, and one of which, you’re going to die. it appears he knew he had the untreatable kind, knew he was going to die soon, and decided that there was no point in “retiring” – he would work until he couldn’t work any more and then he would die.
I think he was a man of incredible character and seemed to be driven by the highest of personal principle. Though I did not always jive with him and his vision, I respect him for his consistent approach and dogged commitment to the law as he understood it. It was never difficult to see his point, even if one disagreed. (When he was an associate, he was the lone dissenting voice on several occasions, that takes commitment to ones beliefs, I can respect that.)
One has to respect the kind of devotion he apparently had for his wife, and for service, he served on several fronts for this country. The opposition needs to step up and fight through the process as he did. We do not need to attack him for using the system as it was set up; he was a remarkable person, who held tremendous power yet seems to have managed to keep from being corrupted. Let’s elect a President that will get a chance to put progressive people of his ability on the bench, instead of thinking ill of someone that was a very worthy opponent, we can win the debate, we just haven’t put up a good enough fight.
May God bless his soul and his family, as he finaly gets a well earned rest, free from the suffering that must have gripped him over the last year of his life. Blessings.
I’m sorry he died, as I would be for any human being. But it was extremely difficult, I admit, to listening to how he interpreted the Constitution as it was originally intended in his decision-making. It wasn’t intended originally for people like me. To congratulate a person for doing his damnest to limit the rights of myself and other women, is not conducive to the fight to maintain women’s rights.
(There were some decisions I agreed with him on, Miranda and the recent Eminent Domain case, but very, very, very few)
The Constitution as it was originally intended, was White men, and mostly those who had means, or owned property at that. It’s hard to admire his um, more positive qualities regarding consistancy and the law because a lot of people’s rights were infringed in part because of those qualities. So I’ll let the liberals and conservatives, Republicans and Democrats find good things to say about him.
So why I’m sorry a human life has ended and for his grieving family, it’s not one that I can really mourn.
“Like most members of the Supreme Court, Justice Rehnquist rarely granted interviews, and said very little about the court decisions he was involved in.
But he did tell the C-SPAN public affairs television network that he enjoyed his time on the high court and working with his fellow justices.
“Yes, I do. I would not want to hold it forever,” he said. “But I have enjoyed it a great deal during the time I have had it.”
Justice Rehnquist served 33 in the US Supreme Court. Not exactly “forever”, but close enough to it as far as I am concerned. Bush now gets to stack the Court with two people who think just like him and hold his same values. That’s a scary thought. What really bugs me though, is that while we got stuck with Bush for 8 years, at least there was always the notion that it wasn’t forever. Gave me something to look forward to. But we are going to get stuck forever with those Bush picks. They are going to be there 30, 40, 50 years, the rest of my lifetime. Not exactly “forever”, but close enough to it as far as I am concerned.
Why would any form of democracy allow a major and powerful branch of its government to be virtually immune from any democratic checks on its members?
About the only good thing I have read about Roberts was that he was in favor of term limits. Of course that was then, when he was on the outside, looking in. It wouldn’t surprise me that once he gets in he decides that “forever” works just fine.
Why would any form of democracy allow a major and powerful branch of its government to be virtually immune from any democratic checks on its members?
So that the branch was virtually immune from democratic checks on its members.
Democracy is a good ideal framework and a decent enough default assumption for a system, but there’s a reason that there are no pure democracies in the world; they die, fast. You have to leaven it with some good old-fashioned autocracy if you want the country to keep going, to prevent the idiot mob from going nuts all the time. To put it in terms of your own political orientation, what do you think is keeping affirmative action around, the constant howl of the people for more governmental oversight of private contract?
Having the judiciary be non-democratic at the highest levels, democratic at the lowest, is an excellent compromise. You get folks who can be committed to long-term principles without fear of being voted out by the mob, and a mix of diverse decisions at the lower levels to provide grist for the mill.
If democracy were all-powerful, every movie would star Adam Sandler, every meal would be pizza, and every drink would be Pepsi.
For all his ideological faults, Rehnquist was a man with extreme respect for the Court and its place in American Society. If a right-winger were to hold that post, we could all have done a lot worse than Justice Rehnquist.
The best case scenario with Roberts is that he’s a Rehnquist clone. There is some reason to suspect as much. As horribly catty and spite-ful his early writings appear to be, it would be inappropriate to forget that Rehnquist himself did far worse in his youth. While Roberts offered school-boy mysogony of a bizarre degree, Rehnquist is reported to have indulged in anti-semetic jokes right into law school. Where Roberts has offered legal advice at times sexist, racist, and often unprofessionally mocking, Rehnquist’s career as a GOP “poll watcher” in Arizona was contraversial to say the least with plenty of allegations of racist attempts to keep down the black vote.
However, while these issues dog Rehnquist and Roberts, no such blights exist in Justice Scalia’s background. Yet, as much as any progressive might have disliked Rehnquist’s ideology, I think most any would find Scalia’s far more odious. What’s more, Scalia’s behavior in writing opinions has not infrequently strayed well away from legal philogophy and into browbeating his fellow Justices and scoring biting attacks on those he disagrees with. All despite any complaints of his actions prior to joining the court.
I suspect some people who are okay being privately churlish and mean-spirited balk at doing so publicly. Rehnquist was perhaps such a man. Or perhaps he softened with age as he came to rever the unique position he held as Chief Justice. The question is whether Roberts similiar background to Rehnquist fortells a similiar transition into a respectful justice, albeit one who is ideologically unsupportable to progressives. If so, his taking Rehnquists place (which I suspect had been Bush’s eventual plan he was nominated, hence the quick promotion) may not be progress, but its also not a step back. Scalia may well behave with respect and dignity in his private life, while professionally understanding the power he wields and being unafraid to use it to push his goals. A demonstration would be his outrage at being asked if he committed sodomy with his wife by a questioner at a college appearance a while back. He’s not afraid to wallow in sexual judgements as an Associate Justice, but being asked of such conduct personally is simply shocking. I imagine the worry about Roberts is that what he demonstrated quietly in his youth is how he intends to act publicly now. Making him more of a Scalia clone than a Rehnquist clone.
I have to be inclined towards thinking Roberts will be much alike to the late Justice Rehnquist. Extremely conservative but with streaks of temperance. In a Chief Justice, this will be useful. Remember, Justice Rehnquist spent much of his time in the minority and this may well be Roberts’ lot depending on the health of Justice Stevens. Perhaps now having appointed his Rehnquist, Bush will go back and appoint a true successor to Justice O’Connor. But I’m afraid I doubt that.
Why would any form of democracy allow a major and powerful branch of its government to be virtually immune from any democratic checks on its members?
The founders never thought that the Supreme Court would get so powerful.
But it was extremely difficult, I admit, to listening to how he interpreted the Constitution as it was originally intended in his decision-making. It wasn’t intended originally for people like me.
But if not original intent, how is one to interpret the Constitution? If we “interpret it to keep up with changing society,” which in effect means “read it to mean what you want it to mean,” why bother have a constitution at all? The constitution can still be amended through the amendment process, so it is not as if no redress exists if we decide that parts of the Constitution are outdated.
I get the reasons behind the “lifetime” appointment thing, Robert. I understand we don’t want the Justices possibly tailoring their decisions in order to keep from getting voted out, or bowing to political pressures. But do you really think the folks who came up with the system were thinking in terms of 30, 40 years at a time?
Up until the 70’s, the average term was about 15 years. Since then the average has risen to 25 years. Due to folks living longer and staying healthier longer, the average will keep going up. 30 years or more at a stretch is too long for any one person to stay in a position of power. Justices should be limited to 12 to 16 year terms. That would allow for new blood, new ideas, and change. And before you can ask, yes, I would be saying that even if every Justice currently serving thought, believed, and voted exactly the way I thought they should.
PS: Adam Sandler sucks, pizza is highly over-rated, and diet Coke w/lime rules! ;)
In the end, the problem (from my perspective, as a lefty) isn’t lifetime terms. The problem is that it’s a democracy and we keep losing.
When I say “we,” I mean both in the sense of we genuine lefties – who are so far out, we barely can be said to have political representation at all – and also in the sense of “the Democrats,” who while being too far right to my tastes, are still better than the Republicans on a bunch of issues.
To some degree, this is because the system is rigged in their favor. True leftism doesn’t do well in a first-past-the-post electoral system. And the Constitution was rigged to give, in effect, extra votes to all the small southern states, a situation that helps the Republican party greatly in times when the population is evenly divided. (It’s worth remembering that the majority of Americans who voted in the last few Senate races voted for Democrats; it’s only the small-state advantage that gives the Republicans an majority in the Senate).
To some degree, it’s just bad luck; Gore certainly would have won in 2000 if not for Nader (and I was a Nader voter), and most likely would have won if Jeb Bush hadn’t dishonestly fixed the election in Florida.
Whatever the reasons, we just keep on losing. And the losers don’t get to pick Supreme Court Justices. Winning elections is the mechanism for changing the direction of the Court.
It sucks, but such is life in a constitutional democracy. Despite the rather foolish triumphalism of much of the right nowadays, history has given me confidence that nothing lasts forever. Sooner or later, the Republicans will get arrogant and stupid and get their asses handed to them in a “throw the bums out” election. If we can keep that going long enough – and if we have some lucky timing – then the Court’s direction will shift.
I don’t think it will be luck. When the progressives quit supporting people that are afraid to be rejected because they are not like the Republicans, i.e. pro-death penalty, pro-war, pro-big business, etc. they will stop looking like they are pandering and we can get on with winning again. (BTW the Southern States did not go true Rep. until Reagan, prior to that they were Dixie-crats.)
Things do have a way of reversing. Folks ought to be tired of no healthcare or healthcare that costs more and more each day. They ought to be getting tired of no real foreign policy, labor in disarray, energy costs going up and up (as well as energy company profits), civil rights being trampled on in the name of “security”. The right continues to believe that all that has to be done is carry the Religious right and they can win. That is a strategy whose time has come to an end. I think a lot of folks don’t like what they see in them, and given an alternative, (a real one, not Kerry or Gore) will gladly vote in enough numbers to change the direction. Possibly like Harry Reid. (I like Dennis Kucinich as far as folks who have run in the past, though he probably isn’t ellectable.)
We do need to quit complaining about the loss in Fla. and Gore because of Nader. W’s father lost because of the Republicans being split by a third party too, no one complained then. My belief is that if you have to blame the refs. you did not score enough.
As for the post that suggests that Roberts is another Rehnquist, Roberts is less apt to want to change the court as Rehnquist did (very much an activist in that sense). Roberts sees the role of the court much differently than Rehnquist who felt it was the final word, and didn’t need to answer to anybody, so far Roberts seems much more a legalist, (but who knows?). Blessings.
Sooner or later, the Republicans will get arrogant and stupid and get their asses handed to them in a “throw the bums out” election.
Hell, we’re already arrogant and stupid. We’re the stupid party, y’all are the evil party, remember? So, sooner, I think.
No political party does well in the absence of a credible opposition. The left has shot itself in so many feet so many times that the conservative 40% are able to dominate the non-conservative 60% almost trivially easily. That’s great for immediate electoral gain, but it softens up the party down the line. We’re in the position of the communists in the 1970s – but our dissidents rounded themselves up and shot one another for us.
With a decent liberal opposition, I’d guess the Republican era of easy wins would come to an end around 2030. Now I think it will be more like 2015. There will be a huge implosion in the Democratic party, and several electoral cycles of chaos on their increasingly-minoritarian side of the aisle, but something will eventually arise from the ashes and will probably become the majority party again, for their own span.
So if you’d like to speed up a viable left-wing resurgence, I guess that continuing the elevation of the Michael Moore’s and Amanda Marcottes of your party would be the smart long-term strategy – get the necessary Schumpeterian creative destruction out of the way right up front.
Why would any form of democracy allow a major and powerful branch of its government to be virtually immune from any democratic checks on its members?
First, the founders of the Republic consistently viewed the Supreme Court as being the weakest of the 3 branches of government. They thought that it’s power would be purely limited to deciding legal cases within the laws as written and originally intended, and that changes to the law would come from the legislature (which is accountable to the electorate), not the judicial branch. Read the Federalist Papers on the topic.
They didn’t anticpate Marbury vs. Madison, wherein the Supreme Court declared its ability to void laws by declaring them unconstitutional. They also didn’t consider that the Court would go past the plain wording of the Constitution and the legislative record to create rights that are not in it, such as the right to privacy (try suing your next door neighbor for using their wireless phone next door to listen in to your use of your wireless phone and see what right to privacy you really have). The power that the Court has arrogated to itself through the decades has in recent years has used to favor leftist causes. Now it has an excellent chance of being used in the opposite direction.
As far as how much immunity the Supreme Court has – well, that is based not on a lack of mechanism but on a lack of courage of the other branches of government.
First, as Andrew Jackson observed, the Supreme Court has no enforcement power. If the executive decides to ignore the Court’s decisions, it’s quite hard to force them to do so.
Also, the legislature has the power to block the Supreme Court from weighing in on particular issues. Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Seems pretty clear that the Congress can remove the Supreme Court’s appelate juristiction in cases if it so chooses. The right would like to create an exception to abortion rights; the left may well want the same choice after the next two SCOTUS appointments.
Finally, the people themselves at the State level have an ability to limit the Supreme Court’s power though the mechanism of a Constitutional Amendment (which can be done without the approval of Congress). And this last reminds us that we are not a pure democracy, we are a Republic, where the elected officials, not the appointed ones, are supposed to have the last say. Perhaps it’s time said elected officials started acting like it.
Interesting points, RonF. I didn’t know that about unconstitutionality. I totally agree about elected officials doing their jobs.
Robert, Robert, Robert, your pointes would be funnier if their wasn’t a kernel of truth in each one. Blessings.