Republican courts

by John Quiggin on April 4, 2009

The Supreme Court has just brought down a 5-4 ruling, written by Clarence Thomas, denying workers the right to sue over age discrimination if their union agreement calls for arbitration. As the New York Times says, it’s hard to believe that Congress intended this.

It seems likely that we will see a lot more of this kind of thing, since the Bush Administration has packed the courts with movement conservatives. Fortunately, there is a simple response available, at least in cases of statutory interpretation. Every time the Supreme Court comes out with a decision like this, Congress should pass a tightly worded act, repudiating the Court’s interpretation. Sooner or later, they wil get the message.

We had this problem in Australia with a Chief Justice (Garfield Barwick) who continually undermined the tax laws on the basis of an extreme form of textualism. In this case, it wasn’t sufficient to fix the law after he broke it, since new tax dodges arose with great regularity. Eventually Parliament passed amendments to its meta-legislation, the Acts Interpretation Act, stating that the courts should take into account the intention of Parliament as stated in the second reading speech that normally introduces the law. Barwick resigned about the same time.

Of course, this won’t work if the Republican majority on the court relies on constitutional interpretation to strike down legislation. This ought to (but certainly won’t) provoke an outcry from conservative opponents of “judicial activism”. But, as Roosevelt showed, it’s a political struggle in which the courts are not as well-placed as they might seem. A determined legislature with popular backing can make it very hard for courts to defend strained interpretations of the constitution.

Jonah Goldberg responding to a paragraph by Will Wilkinson:

As it happens, American drug prohibition and sentencing policies hit poor black men the hardest, devastating already disadvantaged black families and communities—a tragic, mocking contrast to the achievement of Obama’s election. Militarized police departments across the nation month after month kick down the wrong doors, terrify innocent families, shoot lawful citizens, and often kill the family dog.

I’m not casting doubt on the statistics they cite or the sincerity of the arguments (I’ve argued with too many liberatarians and legalizers about drugs to doubt their sincerity on the issue, statistics are another matter). But something has always bothered me about the drug war is racist argument which, in fairness, Will only suggests above.

It seems so, well, unlibertarian — at least in one respect. Sure, as an argument against the unintended consequences of what they consider to be a bad policy, the disproportionate affect on blacks works just fine.

But as an argument from proud individualists it seems a bit off. It seems to me that the classical liberal is supposed to see people as autonomous and sovereign moral actors, not identity politics groups.

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