I also note this remark.
"Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills."
"Minimal skills" reminded me of a remark made to my husband by a noted Professor of Government recently. Prof. said that when he first began teaching, he always assigned his students SCOTUS decisions & dissents on the ground that they were marvelous, tightly-written, profound essays on the principles of government. He never assigns them anymore, because they simply aren't good any longer. Not even from Scalia & Thomas (Scalia can fire off a blistering polemic, but that's not the same thing).
I can certainly vouch for that. In the time before Christ when I was a lobbyist, it was practically an office pastime to mock Justice Kennedy's prolix prose. Many people are familiar with the "sweet mystery of life, at last I've found you" argument in Casey v. Planned Parenthood, but my personal favorite, also from Casey, was "Liberty can find no refuge in a jurisprudence of doubt." (Anyone got a clue what that means? Right. It means "Abortion is bad, very bad, extremely bad, but we must have it because if we overturned Roe, the Court would look silly, and we would lose our invitations to the 'A' parties in town, not to mention undermine SCOTUS' power.")
Prof's point was that the Justices used to try to persuade one another but no longer bother, and he wondered aloud whether anyone on the Court has really thought about government in the broad sense --rather than simply applying personal formulas, some good, some bad. I was interested to learn that since some time before the Rehnquist Court, there is no longer any time after oral arguments when the Justices get together and debate to come to some consensus. They simply retire, write their opinions, pass them around, and the one with the most concurrences wins. Doesn't seem like a good model to me if that's so. Don't you think the deliberative process ought to include some, y'know, deliberation?
Which leads to a complaint I have about lawyers, or rather, with the law schools. I defend lawyers against jokes about their character, as I know too many fine ones. But it is extremely rare to find a lawyer anywhere on the political spectrum who has a coherent vision of the American political system and a real respect for it. They have astonishing mastery of case law and agile minds, but for the most part can't think outside the deep ruts of positive law.
Gov. Bush's impotence in the Terri Schiavo matter is a case in point for what I'm talking about. When he sent people from the office of Children & Families to take custody of Terri, they were met by Marshalls who barred their entrance.
That ought to have sent chills down the spines even of those who wanted Jeb out of it because that, my friends, was a coup. Literally. The Marshalls are part of the executive branch, not the judicial branch, and their sworn duty is to uphold the Governor's dictates, not the court's. Jeb backed down because his counsels advised him to bow, and he deferred to their "expertise." And at that moment he also showed who really governs Florida --and it ain't him.Lawyers can only think in terms of obedience to courts --never in terms of obedience to the Constitution, which is higher. Similarly, our legislators at every level are plagued by the advice of lawyers who think only in terms of how to write laws on a razor's edge so as to squeak by activist judges. That's fine in as far as it goes, and indeed needs to be one front in a governing strategy, but what's also called for is a challenge to the naked power grab of the courts.
