Wednesday, October 14, 2020

The Children Don't Matter

It's the idea that matters.

I understand judges should not weigh in on policy disputes. But Brown v. Board.  But any number of decisions by the Warren Court that are foundational to our world.  Or the Court denying FDR his "New Deal" and then deciding maybe they should butt out of "policy disputes."

A policy dispute that courts should not tread on is, like interpretations of a text, in the eye of the beholder. It's not a clean line you can declare and then hide behind.  Of course, Robert Bork freely gave of his (stupendously stupid and outre) opinions (IMHO), and look what happened to him.  ACB is the apotheosis of the anti-Bork judicial candidate.

I think we've had about enough of this, too.  The Warren Court, in a nutshell, was concerned with people.  The Roberts Court, in the same nutshell, is concerned with ideology.  Roberts only concern is that the court not get too far ahead of its perceived authority.  He understands, as did the court under FDR, that the Court's authority is really much more fragile than that of the other two branches of government.

I'm not sure how much longer that authority is going to remain, as the Court keeps insisting people don't matter, only things and ideas do.

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