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July 18, 2005
Strib Still Confuses Judiciary With Legislature

Is it too much to ask for a newspaper's editorial board to have passed their high-school Civics classes? Apparently so in Minneapolis, where the Star-Tribune's editorial this morning once again attempts to opine on the Supreme Court opening left by Sandra Day O'Connor. They start in the predictable pattern set by earlier missives:

Americans have come to see how profoundly a single justice can influence the court and the country.

No one has seized upon that lesson with more fervor than America's religious right-wingers, who consider O'Connor's retirement during a Republican administration a chance to redirect the court. They won't readily say it, but they're eager to see another ideological bedfellow on the bench -- a predictable thinker whose views on abortion rights, gay marriage, police power and strong governmental authority reflect their own.

Uh-huh. I don't hear them complaining about Chuck Schumer demanding that any nominee answer questions about whether he or she will set aside earlier precedent or treat existing SCOTUS decisions as unshakeable -- which amounts to the exact same thing that the Strib deplores here. Schumer told the press last week that any nominee who refuses to proclaim in advance how he or she will vote on abortion, gay rights, and so one would face a filibuster as an "extreme" candidate.

Using that reasoning, however, the Warren Court's Brown v Board of Education decision violated both Schumer's and the Strib's understanding of the role of SCOTUS. Despite the Warren Court's correct reading of the 14th Amendment, it still flew in the face of established law and precedent going back over 60 years -- and was right to have done so. The difference is that the 14th Amendment spoke directly to the issue at hand, and Plessy v Ferguson ignored it in favor of comtemporary, popular thought.

Sound familiar?

The Strib, however, displays its ignorance in full view towards the end of this editorial:

It has become almost an article of faith among Republicans that "conservative" judges deserve praise for interpreting the Constitution narrowly -- a move they somehow imagine is freedom's surest guarantee. They save their calumny for "judicial activists," who they believe treat the Constitution as a handy starting place for slaphappy extrapolation that -- if left unchecked -- would affirm mayhem and debauchery as essentials of American life.

All this language -- all these assumptions -- pay short shrift to the complexity of U.S. jurisprudence. They also make light of the challenge the nation's top judges invariably face: As the words of even the high court's proclaimed conservatives show, interpreting the Constitution demands an inventive mind -- one that can translate centuries-old philosophy into modern policy.

That sounds lovely -- except creating policy isn't the job of the judiciary! The Legislature and the Executive work together to create policy. They represent the people, and the people can hold them accountable for their policy decisions on a regular basis on Election Day. The laws enacted by this policy get reviewed by the Judiciary when the need arises, but the only tasks set for the Judiciary is to ensure that the laws do not violate the Constitution and are applicable to the cases at hand. "Creating modern policy" is what got us Plessy in the first place, as well as Roe and all sorts of unconstitutional intrusions by the judiciary in the public-policy realm that belongs to the people.

One would hope that a major metropolitan newspaper like the Strib would employ people familiar with the Constitution and concepts like "separation of powers". However, as we see, the Strib worries more about partisan scorekeeping and the victories of special interest groups rather than the rule of law and Constitutional government.

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Posted by Ed Morrissey at July 18, 2005 6:54 AM

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