Here in NC, Democratic justices are
preparing to force Republicans off the bench to try to rule voter ID unconstitutional. The terms of the suit would facially appear to disqualify every other law ever passed in NC, and the state constitution.
This one is worth reading in full.
This seems appropriate-
ReplyDelete“William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
― Robert Bolt, A Man for All Seasons
A good discussion of how this starts in the context of a review of Stephen Breyer's The Authority of the Court and the Perils of Politics.
ReplyDeleteThe greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.
But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.
...
Unfortunately, Breyer’s lack of self-awareness characteristically undermines the plausibility of his work. In a previous book—Active Liberty—he called for a jurisprudence that focused on facilitating democracy. But he never even discussed the abortion rights decisions to which he adheres. Yet of course those decisions take democratic decision making away from the people of the states and arrogate it to judges—and they do so without any support in the text of the Constitution. In his new book, he calls for increasing the habit of trust in courts, but never considers how his own jurisprudence may decrease that trust.
https://lawliberty.org/book-review/the-pitfalls-of-justice-breyers-rambling-consequentialism/