DeLay v. Judicial Independence

I've got to hand it to ol' Tommy- when other politicians would try to fly under the radar until the feces comes away from the fan, he just keeps on keepin' on. His attack on the courts continues- now with an extraordinarily unusual attack on a single sitting Supreme Court Justice.

House Majority Leader Tom DeLay intensified his criticism of the federal courts on Tuesday, singling out Supreme Court Justice Anthony Kennedy’s work from the bench as “incredibly outrageous” because he has relied on international law and done research on the Internet.

I agree- it is outrageous that a Supreme Court Justice would do his own research. What really irks me about this comment is the arrogance about how international law has no place in American jurisprudence. That may be the case in Texas, but in the Constitution of these United States, international law is federal law. (See Article I, Section 8, "Congress shall have power to define and punish... Offences against the Law of Nations." See also Article VI, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." See also The Paquete Habana, 175 U.S. 677 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.")

Essentially, DeLay believes that any reference to anything other than the simple letter of the law is treasonous. He goes on to note that there are a “lot of Republican-appointed judges that are judicial activists.”

Like Mr. Justice Scalia, perhaps?

What? Scalia? The bulwark of "strict constructionism?" Surely he, of all judges, sets aside his personal opinions and decides cases on the plainest reading of the Constitution itself!

Not hardly, numbnuts. The Times today ran an editorial citing the times has Scalia has used his robe to undo and undermine the explicit instruction of Congress, voting to overturn the Gun Free School Zones Act, the Violence Against Women Act, and the Religious Freedom Restoration Act.

Moreover, "strict constructionism" is a fallacy. The concept that the Constitution should be narrowly construed to limit its application to the "plain meaning" is a red herring. There are, indeed, times when the Constitution means precisely what it says- in a Federal civil trial, if you're suing for more than $20, you have the right to a jury.

Or do you? A strict constructionist would say, simply, twenty bucks is twenty bucks. However, there is a perfectly valid and rational argument that the Seventh Amendment means "twenty bucks in 1789 dollars," about five grand today.

Most of the questions are rarely that specific. What does the "equal prtection of the laws" mean? What constitutes due process? What is "liberty," as that term is meant by the Fifth and Fourteenth Amendments? What is interstate commerce? These are terms that require explication, and to do that we have judges.

What it really boils down to is the tension between the branches of government that has been ongoing, more or less continuously, since the founding. What scares me about its current incarnation, is that DeLay has the people who could do something about it (i.e., Congress), in the palm of his corrupt, clammy hands. He has raised the possibility that Congress could obliterate all Federal courts inferior to the Supreme Court, an unrealistic possibility, but one that I think would in fact be constitutional.

Courts must be independent. Life tenure exists to shield the courts from the passions that inflame the political branches. Sometimes, judges must make unpopular decisions. Brown v. Board of Education was vehemently despised in the South- it still is in many parts. It was also the right decision. The thought that a judge should be impeached for applying the law is a terrifying thought- they had "judges" in Nazi Germany and Soviet Russia, too. None were particularly noted for their independence.

Then again, I think Tom "That Petulant Worm" DeLay has modeled his leadership style after those two nations.