Letters To My Country

April 1, 2012

"One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court’s conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn’t it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren’t they? And they are supposed to be following existing precedent, aren’t they? It’s the Supreme Court that’s the outlier here."

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Andrew Cohen. Not that I pretend that Andrew Cohen reads my blog, but I’d offer the same comments that I made earlier with respect to the Supreme Court’s approach to oral argument. Tough questions at oral argument don’t necessarily mean that a justice is going to vote against a law; sometimes they pepper litigants with tough questions because they want the litigants to help the justices themselves respond to foreseeable objections when they go to write their opinion. As frustrating as it can be to hear Scalia flippantly conjure up nightmares of 'broccoli bondage,’ it’s certainly conceivable that he was going down that road with an ulterior motive.

I do, however, take Cohen’s point with regard to the lower circuits. Though I think that merely speaks more to the idea that the Supreme Court is as much a political institution as it is a legal institution. The only way judges get on the Supreme Court is by being hand-picked by a politician for the job. There’s plenty of extremely competent jurists of diverse political and legal philosophies who are qualified to sit on the High Court. But the people who make the cut are selected with certain policy goals in mind, and not simply because they’re qualified judges.

9:59pm | URL: https://tmblr.co/ZMMjnxIxYiEP

(Notes: 13)