Are things getting to be unprecedented?

Whether I like it or not, this is supposed to be a political blog, not a self-indulgent forum for posts about personal irrelevancies like being awakened in the middle of the night by bats. Anyone reading that post might think, "What has any of this to do with the serious problems posed by Barack Obama?" It's as if by writing and obsessing about the bats in my home, I'm ignoring the much more serious problems of "moonbats" taking over the government.

Unfortunately, I've learned that not thinking about Barack Obama (and whether his administration is populated by "moonbats") is a lot easier than thinking about him. The guy is an absolute magician that way. The more you ignore him, the more pleasant he becomes. The more you think about him, the less pleasant the experience. It's double reverse aversive conditioning or something, and because I'm human, I'm vulnerable.

I don't know what the solution is. Perhaps I should try harder to be more negative. And instead of dwelling on real bats, perhaps I should be dwelling on moonbats.

Whether Justice Sotomayor is a moonbat I cannot say. Certainly it wouldn't be nice to call her that, and I pride myself on being nice. I realize that there's an argument going on over how nice we should be, but I've spent six years trying (if not always successfully) to be civil in this blog, and at 54, I'm probably too old and set in my ways to suddenly start going out of my way to be deliberately rude.

However, you don't have to be rude to recognize that Justice Sotomayor sounds like a moonbat when she says this:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male...
Or this gem:
"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made," she said. "And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [Laughter from audience] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application."
Ha ha ha! We all know that policy is made by the courts, even though it is not supposed to be that way.

So with her little "wink-wink," Justice Sotomayor reveals much about herself. Not only is she a left-wing judicial activist, she's so cavalier about it that she doesn't think it's worth concealing. In fact, her sarcastic "I should never say that" (to great laughter) is a barely concealed sneer of contempt for all who would disagree with judicial activism.

Thumbing one's nose at the opposition hardly constitutes the sort of gravitas we associate with the Supreme Court. Might her appointment be meant as an insult? Whether it is or not, the woman has demonstrated a stunning lack of respect for precedent, and yesterday a law professor writing in the Wall Street Journal recommended that she be asked about it:

Should Supreme Court justices be bound by precedent? All justices sometimes overrule previous decisions. So when is it appropriate to do so? Of course, this is the question that senators use to probe nominees of Republican presidents to see whether they would vote to overturn Roe v. Wade. For Ms. Sotomayor the question is whether she perceives any limits on the ability of the Supreme Court to read new rights into the Constitution.
(Via Glenn Reynolds.)

What is often forgotten about precedent is that it is a two-edged sword. There is nothing in the Constitution about the precedent system, which not all legal systems share, as it derives from common law. Without precedent as an operative principle, each legal case would be decided according to its own facts and merits, and would not be binding on other cases.

What this means, of course, is that without precedent, courts would not be able to set policy. They'd be limited to deciding only the actual cases in front of them and their decisions would not be binding in other cases. Which is why neither "side" of the judicial activism dispute can go too far in ignoring the principle. Get rid of precedent, and a decision grounded in judicial activism would only apply to its own case, and could be summarily ignored by any other court. This is why judicial opinions always claim to be respecting precedent whether they are or not. Whether a decision is considered "judicial activism" depends on which side you're on. Usually, people who agree with a decision maintain that the court was following existing precedent, while those who disagree say that it either violated precedent or else was wholly unprecedented.

Do away with precedent, and judicial activists would be whistling in the wind.

A bit like total deconstruction. When nothing means anything, there's no duty to be bound by anything or take anything seriously.

Justice Sotomayor should be careful with her winking, lest people fail to take her seriously.

Am I taking this as seriously as I should?

Hey, at least I didn't call her a "moonbat."

Wouldn't want to start a precedent....

UPDATE: From Richard Epstein, a reminder that "constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint." (Via Glenn Reynolds.)

Whether federalism is libertarian or conservative is best left to the federalists.

posted by Eric on 05.28.09 at 12:01 PM


Right. A disturbing number of legal opinions--civil findings, contract disputes, and decrees in settlement of administrative actions like pollution and workplace safety penalties--have codicils attached that they may not be cited as precedent.

The "can't we all get along" style is dangerous, because so many practitioners get their experience in fields that lack the sense of history that precedent enforces, destroying the old "majesty of the law" by creating a public reality of cases actually being decided in a vacuum. Judges (and the various "referees" and "arbitrators" who take their place) need to have a first empathy for the body of law, the historical impact of their decisions, before expressing their other excellent empathies. Except in the movies, a trial ain't American Idol. What a judge (or jury!) is supposed to consider is evidence and the content and intent of law, not the performance of the presenters.

The law is not an ass unless we make it so--any wise Latina knows that.

comatus   ·  May 28, 2009 3:14 PM

If she was really a wise Latino woman, she wouldn't have made any of the statements that are following her around the internet these days.

Penny   ·  May 28, 2009 9:28 PM


You forget that the jury system is designed to have no respect for law or precedent in order to protect us from bad law.

The courts etc. try to keep that fact from you. It doesn't change the fact.

Fully Informed Jury Association

M. Simon   ·  May 29, 2009 5:09 AM

To the lay person (and remember, all professions are conspiracies against the laity), the precedent system has become a tool of arbitrary rule: the great mass of law admits precedent that can be used to either sustain or overturn a law or decision, depending on the jurists' personal wishes.

Such a situation has long since undermined confidence in the justice administered by our legal institutions.

Brett   ·  May 29, 2009 7:14 AM

No, I don't forget the function of juries; I am merely aghast at them (including one on which I served). One wonders if the term "fully informed" can even be applied to the jury list as now constituted (a different issue, though). A jury that fails to consider precedent and the content of law, to favor its concept of justice, is a mob.

Brett, those personal wishes are only arbitrary if there is no appeal (which certainly can occur, especially in the administrative cases I cited). But the practice of arguing the applicability of precedent is the greatest contribution of Judaic law scholarship to the Anglo-Saxon system, and should not be seen as (or be allowed to become) an obstacle to justice. Just to take a swing at yet another side issue, at one point Mohammedan legal practice worked in a similar way; in some parallel universe we might owe an ethical debt to Muslim legal scholars. Things appear not to have worked out that way.

comatus   ·  May 31, 2009 12:53 AM

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