Friday, April 11, 2008

For Those Unclear Who Is Supposed To Run Things

Orin Kerr at Volokh Conspiracy quotes from a recent book review by 9th Circus Court of Appeals Judge Stephen Reinhardt--among America's most liberal judges, married to the director of the ACLU's Southern California
coven chapter.
Reinhardt is the judge responsible for the Harper decision that free speech in schools, which has generally been allowed since the Tinker v. Des Moines School District (1969) decision, only applies to pro-homosexual agitation--but not to opposition to it. (Except, of course, when Reinhardt feels like free speech takes precedence.)

And Reinhardt, as you might expect, cites decisions that demolish his argument on his gun control with no apparent awareness or concern. And when someone pointed out that Reinhardt cited Bellesiles's fraudulent work to support his claim in an opinion--he just replaced the reference to Bellesiles with the footnote that Bellesiles had used. But Reinhardt didn't bother to see if the cited source actually said what he and Bellesiles claimed that it did.

So what did Judge Reinhardt have to say that has Professor Kerr and me upset? I found the quote so disturbingly honest in its elitist tyranny that I thought it best to verify that Professor Kerr didn't misread it. Unfortunately, he did not. From Stephen Reinhardt, "Weakening the Bill of Rights: A Victory for Terrorism," Michigan Law Review 106:963, 973:
I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come. [emphasis added]
I can somewhat forgive the remark about trusting judges more than elected officials. The judiciary does serve an important role in checking popular enthusiasms when they run contrary to the Constitution. But what I have highlighted above--about determing "the nature of our society" is a frighteningly power-mad view of the judiciary's function and authority. Instead of Plato's philosopher-kings, I guess we get philosopher-judges instead. Someone seems to be unaware that, "Here, the people rule."

No comments:

Post a Comment