Betting on Judicial Independence

So neither the Left nor the Right really care about the Constitution. Pragmatism and Legal Realism have become so pervasive that I think it's all become kind of an act. So for the Right, preaching "federalism" just means there are more liberals in the federal government than the states and they have a better chance of spreading conservative policy through the states. For the Left, judges and lawyers are disproportionately liberal, so they can get more done by using their lawyers to convince judges than they can be enacting leglation. The "Constitution" is largely a tool of rhetoric.

Now that is overstating the issue, but the point, I think, is still valid. Erwin Chemerinsky on the use of the fillibuster is the perfect example. When the dems were in power, he decried the use of the fillibuster, now he's arguing for its use as a vital part of democratic government. Silly.

The problem arises when either side makes neutral Constitutional arguments. "Judicial independence," "textualism," and "federalism" are all neutral in the sense that they can, based on the substance of the issue, go either way. If one thinks that these theories of government are neutrally good, provide freedom and promote democracy, then fine. But if you're making these arguments based on whether they will deliver a certain outcome, then you're gambling. You're betting that the makeup of the people in the poltical branches isn't going to change such that your jurisprudence is going to produce inopposite results.

And judicial independence is the worst one. If the folks at ACSblog think that Congress shouldn't be able to set standards of review for the courts, what happens when the judge doesn't want to disturb the lower court ruling, ignores a statutory mandate for de novo review. Rest assured that Chem is going to be at the front of the line decrying this "judicial activism."

So the Left is betting. And if this newkular option goes through, it is probably a losing bet. They're going to be at the front of the line arguing for judicial restraint; they're already the ones arguing for federalism. I think I've heard more arguments out of lefties for federalism recently than out of conservatives.

Now, I think the Right does this better than the Left. But I hope it's because we really believe in neutral principles and law uncorrupted by politics. We should rely on the neutral principles of the Constitution that have treated our country so well. And this means we can't depart from the principles as soon as they don't give us the outcome we want. Constitutionalism requires patience, as it is not perfect.

Let us restore formalism, not trade left-wing pragmatism for right-wing pragmatism. We should do this because we believe in formalism itself, but also because betting on a pragmatist is a scary thing. See, e.g., Stevens, Souter, Kennedy. Even if you pick right-wing pragmatists, you can't trust them to even deliver the outcomes you want.

Formalism ensures the upholding of the structural constitution and "Our Federalism" regardless of the changing tides of politics.