I love the law.
In my first post on TCC, I made it clear that I am, above most things, an academic. I love almost everything about what I’ve spent every day of the last eight years doing; since entering law school, my appreciation for philosophy and the rule of law has only deepened, in spite of all the late nights, liberal professors, and Red Bull-induced freakouts that occasionally end with me sleeping standing up in an elevator. (Happened. Two nights ago. Wouldn’t lie.)
Along with that appreciation has come a deep respect for, and a tireless defense of, law as a profession. The lawyer jokes are funny until they’re not jokes anymore; it’s incredibly easy to joke about the ethics, business practices, and overall brainpower of lawyers because (get ready for a dramatic declaration) lawyers are just about the easiest targets out there. Why? Because you don’t get it. I should say, you don’t get all of it; what people see when they’re exposed to law and the courts is a tiny, tiny, miniscule–nay, wee–fraction of what actually happens when a controversy becomes a case and is heard before a judge. You’ve not seen the work ad infinitum that goes in to researching and presenting a case.
I believe this is why so many people applauded Newt’s comments on reforming the judiciary during Thursday night’s debate, and why my head is now pounding through a perpetual caffeine overdose.
There I was, fresh out of my income tax final and looking for something to kill. (Only not. But…kind of. It was hard.) I parked myself in the library and settled in for a solid fifteen minutes of procrastination before snuggling up with my crim pro text and a man by the name of Miranda. I started flipping through my timeline and came across a clip of Newt Gingrich pontificating on what he believes is an overstepping in perpetuity of the judiciary. Check out the clip, then read on.
This is pandering in its worst form, especially his comment at the end about law schools fostering in their students a belief that they can dictate the law and lord it over the rest of the American people. I won’t call him a liar on this one, but I will call a spade a spade with regards to his debate strategy.
This segment sent me into a slow burn, and here’s why: if we start holding courts accountable to Congress for decisions in controversial cases, who, then, are we giving final authority over those controversial decisions? Congress? The same Congress who passed eighty five million pages of garbage and called it “recovery”? The same Congress who danced around a budget for hundreds of days? The same Congress who appointed Justices Sotomayor, Kagan, Ginsburg, Stevens, Breyer, Marshall, Harlan, White, and Souter to the Court? HMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM?
We have Congress for a reason. We have courts for a reason. Some courts are more reliable than others; the 9th Circuit, for example, is notorious for being overturned on cert. Even assuming, arguendo, that Congressional oversight would fix all of our problems, would it be worth it? I think that it would not. In his response, Newt makes much of Dred Scott, Elk Grove (via the 9th Circuit) and other cases that, for one reason or another, are not looked upon with particularly high favor. Those are the bad cases, the cases that make you cringe–whether it be from the effect on the people, or from the reasoning that went into the holding. The thing about cases like Dred Scott, though, is that they were overturned. The Court looked at what happened, and went in a different direction. This is how it’s supposed to work.
Imagine for a moment a world in which appointed judges were required to bow and scrape before elected politicians every time a “controversial” (whatever the hell that means) decision came down. Can you imagine having to sit before the next Rick Santorum and explain why you ruled consistently with relevant provisions of Casey v. Planned Parenthood? Or Griswold? I’d rather clean a toilet with my own toothbrush than subject myself to the penumbras that would surely emanate from that “hearing.” Not to mention the effect the prospect of a hearing would have on the deliberation process; especially at the appellate level, judges and clerks should not have to worry any more than they already do about who their decision might send into a pearl-clutching fit of the vapors.
It’s true: the courts do overstep. Judges legislate from the bench, that that makes for results that are beyond frustrating. However, our system of checks and balances makes it possible to fix what even the courts manage to screw up; the legislature has the power to write and rewrite legislation, and the executive has the power to check the overchecking of the legislature via veto. To rip the power of interpretation away from the courts and settle it into the laps of career politicians would be beyond reckless.
I’m almost a lawyer; when I finally get to where I’m going, it will be my job to read the law, interpret it (which includes a historical analysis, so I guess we’re all historians now, aren’t we Mr. Gingrich?), and apply its principles to the hand I’m dealt.
It will not be my job to “read the American people,” and it will most certainly not be my job to pervert the law to fit the standards of a man whose job it is to put votes before principle, and acceptance in the soundbite culture before the rule of law.
Amy Miller // Michigan State University School of Law // @Amy_vrwc