Wednesday, 18 May 2005

Inconsistent Rulings Do Not Make Judges ‘Centrist’

(This argument is precipitated from the comment section of this SoapBox Politics Article.)
First, "Centrist" is an arbitrary term and certainly doesn't apply to someone who only gets, God forbid, half of their opinions right. This term, and others like ‘judicial mainstream’ vary from legal generation to legal generation. (150 years ago Clarence Thomas would have been dead center, for example.)
I respect Judges who are consistent, and I think it is absolutely necessary to the rule of law for them to be so. That is why I like Ginsburg a great deal. I 'm not sure I've ever read an opinion of hers I've ever agreed with, but you know the Constitutional principles she believes in, even if it’s something as asinine as a "right to privacy" (For the origins of this so-called right, please read William O. Douglas’ opinion in Griswold v. Connecticut where he manufactures this right from the “penumbras” and “emanations” of the Bill of Rights.)
When you have inconsistent judges like Kennedy and O'Conner (and yes, sometimes even Rehnquist), confusion absolutely prevails. Look at Roper v. Simmons (and my commentary on the case) which over turned state laws that allowed juvenile death sentences. 15 years ago the Court said in Stanford v. Kentucky, unequivocally, that the states have a right to decide the issue of juvenile capital punishment laws themselves. The result; some states passed laws that rescinded that right, others passed laws endorsing it. (See this website for more info on juvenile death penalty laws.) However, this year, Kennedy wakes up on the international law and ‘evolving standards of decency’ side of the legal pendulum, sites no constitutional principle, gives no thought of Stare Decis and overturns the Court’s standard on seemingly a whim.

However, by endorsing centrism, at least how it is being used at SoapBox Politics, as long as Kennedy (or any judge like him) gets the next ruling ‘right’ it’ll make up for the previous bad rulings like Roper? I just can’t get behind that. Consistent judicial rulings are not overly dogmatic, but essential to good law making. How can any legislative body make Constitutional laws when the Constitution is being changed as often as a pair of underwear? That is like playing a game of Monopoly and only sometimes collecting $200 when you pass go. The other times you get nothing or maybe half of it or maybe a consensus is made periodically among the other players. At any rate, the split-the-baby, case-by-case, unprincipled method used by so-called centrist judges destroys the fabric of our Constitutional system. As legislative bodies pass laws dealing with medical marijuana or the Ten Commandments (two issues currently on the docket in the Supreme Court), these bodies will increasingly be left in the Constitutional dark, unable to know which laws are permissible to pass and which aren’t, which is just an incredible waste of time and money. Thus left unguided by an unprincipled court, state and federal Congresses will now throw anything they want on the wall with an increasingly greater chance presently unconstitutional laws will stick. We need strong judges who are sure what the Constitution was, is, and is going to be without tasting the political flavor of the week. Certainly, Justice Kennedy and the rest of his ilk do not stack up favorably to that standard.

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