SCOTUS Smackdown!

You know how every time Associate Justice Antonin Scalia gives a public speech wherein he actually [***GASP***] expresses his originalist opinions the social Left has a conniption about it, oftentimes insisting that it means he must recuse himself from future cases on the issue in question? And that this is invariably a one-way street, as Justice Breyer's recent and repeated defenses of using foreign legal precedents in lieu of the text of the U.S. Constitution as a guide has been regarded like sunbeams streaming down from the bright blue sky?

Well, the oligarchs are upping the ante.

It started a week ago with former Justice Sandra Day O'Connor, who apparently sought to remove all doubt about the jurisprudential "journey" that carried her away from the Constitution she once swore to interpret and uphold:

Retired Supreme Court Justice Sandra Day O’Connor has warned that the U.S. is in danger of moving toward "dictatorship” if Republican leaders continue to attack the judiciary for liberal bias.

In an address to corporate lawyers at Georgetown University, O’Connor declared: "We must be ever-vigilant against those who would strong-arm the judiciary.”

She pointed to dictatorships around the world as examples of where political interference with the judiciary might lead, according to the Guardian’s report on the speech.

"It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.”

I don't know whether to feel insulted or dazzled by her sheer cheek. It is the Judicial Branch of our government that is quasi-dictatorial these days, not the Legislative or Executive. It is unelected judges who regularly overturn the democratically-expressed will of the people if that will doesn't suit their ideological fancy. It is to a coterie of nine robed "Supreme" overlords that the nation looks every October to be told how we will be allowed to live our lives and how much freedom we will be granted and which groups will have more freedom then others. O'Connor seems indignant that the people, through their elected representatives, would dare seek to reclaim the sovereignty the Constitution acknowledges from her and her colleagues who have done so much to usurp it.

Citing the state-ordered execution of Terri Schiavo last year - precisely the sort of thing that happens in dictatorships, BTW - and Congress' courageous, principled, and eminently constitutional attempt to stop it, O'Connor declared:

Such statements "pose a direct threat to our constitutional freedom,” said O’Connor, who was appointed by Ronald Reagan and served 24 years on the Court.

Ah, yes, "judicial independence." The thing is, the kind of indepedence, coupled with the level of power, that O'Connor is talking about is typically enjoyed only by....dictators. Don't believe me? Ask yourself how lefties would react if President Bush responded to the endless seditious attacks against him from the political opposition by declaring them to "pose a direct threat to constitutional freedom" and insisting that "Executive independence" was the key to saving the country from "dictatorship."

The Judiciary was never meant to be "independent." It is a co-equal branch of government, subject to checks and balances just like the other two. The president appoints its members and the Congress can remove them as well as creating lowerw courts and limiting the Supreme Court's appellate jurisdiction. And beyond that, judges and justices who legislate from the bench should not be able to claim exemption from being treated just like any other politician.

If Justice O'Connor was the warm-up act, Justice Ruth Buzzy Ginsberg was the main event, taking her former colleague's handoff and running wild with it.

Addressing the Constitutional Court of South Africa six weeks ago, Ginsberg, among other things....:

....argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to "the perspective I share with four of my current colleagues," and she specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the two bills that were introduced in Congress in 2004 and were broadly supported by Republicans. And she indulged in an outrageous bit of demagoguery, suggesting that those who disagree with her are somehow aligned with Justice Taney's infamous defense of slavery in the Dred Scott case.

Her depiction of which dishonestly cast Taney as an originalist when his ruling in Dred Scott was precisely the sort of activism that Justice Ginsberg and "her four colleagues" practice - and which did as much as anything else to plunge the country into (its first) Civil War.

But that obviously wasn't sufficient to get her true disapprobation across. So, just like Justice O'Connor's paranoid warnings of encroaching "dictatorship" if the people try to reclaim their country from her colleagues' imperial rule, Justice Ginsberg went one better (or worse) by seeking to effectively liken constitutionalists to an Iraq-style "insurgency":

And one not-so-small concern — they [the congressional resolutions] fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O’Connor and me to a February 28, 2005, web posting on a “chat” site. It opened:

“Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”

Does it really not go without saying that death threats are illegal? And that whoever posted this death threat should be arrested, tried, and punished to the maximum extent of the law?

Does it also really not go without saying that the "irrational fringe" - which resides on Ginsberg's side of the political divide to a far greater extent, and far louder, I might add - is "fueled" by the imperious substitution of personal ideology for constitutional jurisprudence of her and her like-minded allies far more than by legitimate opposition to it? And that she is attempting to flagrantly smear that legitimate opposition by this brazen act of judicial McCarthyism? It reminds me of how the Clinton administration and its Extreme Media allies exploitated the Oklahoma City bombing to try and demonize the GOP and the entire conservative movement. It is also, like O'Connor's, an extremely revealing, and desperate, act of psychological projection by extremists whose grip on extraconstitutional power is inexorably weakening.

Fortunately, both sides are coming to the rhetorical party these days. Justice Scalia, of course, has been here all along, and jumped in again with both feet this week:

Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law
students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected legislatures - not the courts - should decide watershed questions such as the legality of abortion.

Amen, brother. Ain't no shutting him up, and thank God for it.

Ditto his (hopefully) one-day sisters on Olympus:

Consider a speech that Judge Edith Jones of the Fifth Circuit gave last week to a Federalist Society meeting in New Orleans....

Her topic was some judges' increasing use - improperly so - of foreign sources to construe the U.S. Constitution.....

Judge Jones explained how it was that the first, almost innocuous, citations of foreign authority grew into their acceptance, and ever-more-rampant use, by a majority of today's Supreme Court....

The problem, said Jones, is threefold: Such citations violate the original meaning of the "supremacy" clause making the Constitution the supreme law of the land; they violate the structural role of the judiciary by expanding the authority of judges beyond the parameters of U.S. law; and they create major functional problems because lawyers (and judges at any level below the Supreme Court) have no way of knowing what the law is because they don't know which foreign laws or courts will be found applicable to current cases....

[O]ne more key line, quoted third-hand but I believe with substantial accuracy, was that a foreign law citation in U.S. courts, based on some "standard of decency" that is undefined and evolving, "involves the potential for the hijacking of self-government because the court is allowing itself to be influenced by self-appointed 'human rights watchdog groups' with no political legitimacy and no constituency." [emphasis added]

Seventh U.S. Circuit Judge Diane Sykes echoed Judge Jones' sentiments at about the same time at Marquette University, saying that judges ought to observe "the prudential institutional caution that counsels against imposing broad-brush judicial solutions to difficult social problems," and, "[T]he court's responsibility of judicial review is not a warrant to displace legislative judgments."

You'll note that not Scalia, not Jones, and not Sykes had to resort to hysteria and character assassination to get their points across. That's because their points stand quite well on their own.

It is judges like Scalia, Jones, and Sykes, who understand the limited, co-equal role of the judiciary in our republican (small "r") form of government, who are the institutional bulwarks against a fall into dictatorship, and judges like O'Connor and Ginsberg and her "four colleagues" who, whether or not they realize it, are trying to import the very foreign heresies that make such a fall more likely.

If that be "irrational," then the rubber room will have some very esteemed company.