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Having just read John McCain's response to the Supreme Court's decision on the Gitmo detainees, I think the entirety of the right may be in need of a refresher course in how the rule of law works. On Friday, McCain (who I'm starting to think is losing his mind) said "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country..... We will regret very much in the days and months and years ahead this decision by the United States Supreme Court". Now, leaving aside both the lack of historical knowledge evident in that and the simple fact that it directly contradicted his own words 24 hours earlier, McCain also made a big deal of the fact that Supreme Court justices are unelected and unaccountable.
The right loves to do this. One of their favourite ways of disagreeing with the judiciary (after "activist judges", naturally) is to accuse the judges of overturning the "will of the people". Antonin Scalia's bile-fuelled rant of a dissent makes for entertaining reading, in the same sense that complete surrealism can be fun to watch. Scalia (who, in my view, should be impeached for this dissent alone) firstly, restates the right's talking points about the nation being attacked by terrorists and then essentially says that the Supreme Court has no right to disagree with the President during "time of war" (can someone please point me to the formal declaration of this war? Chimpy's say-so doesn't count, there is a formal process which must be gone through to argue war time powers). The reason I say Scalia should be impeached is not because I disagree with his dissent (although I do), it is his blatant attempt to shirk the responsibility of the court.
I had this exact same arguement a few weeks back with regard to the California Supreme Court's decision which struck down the state ban on same-sex marriage. Your Founding Fathers made the Supreme Court unelected for a reason, the exact same reason why virtually every civilised nation and most states make judges unelected: To ensure they don't have to follow the "will of the people". It is not the job of the judiiciary to follow the whims of the majority or to uphold the president's status or, even as Scalia seems to believe, to protect the American people from terrorist attack. The Supreme Court (and all other courts, come to that) have only one responsibility: Their first, last and only responsibility is to state the law as they understand it. That's not to say they can't be dead wrong on occasion (Dred Scott comes to mind) but the judiciary is unelected and independent to guard against the tyranny of the majority, not to enable it. If the court's decision causes the death of Americans (which it won't), that is to be regretted but, with respect, not the court's problem. The court's problem is the interpretation and application of the law, nothing else.
Scalia is not a stupid man, he knows what the function of the judiciary is and he knows how the principal of judicial review works. Unlike his opinion in Bush V. Gore (a decision so nakedly politically motivated that the Supreme Court had to declare that on this sole, single occasion, the principle of stare decisis didn't apply), he barely even tries to argue with the court's legal reasoning. Instead, Scalia's sole nod to legal reasoning is his arguement that the Constitution's protections were never meant to apply outside of US borders which is, firstly, irrelevent and secondly, disproved by over a century's precedent, treaties signed (which the Constitution makes part of the US law) and teh Founders own writings. If Scalia had come to the court with an honest dissent on legal grounds, I could find some sympathy for him or, at least, a little respect. Instead, Scalia tells the court that it has no right to do it's job. Scalia's duty is to uphold the Constitution and the Constitution is very clear about when and how habeus corpus can be suspended; in cases of rebellion or invasion ONLY. Scalia disregarded that.
When a Supreme Court justice ignores the Constitution; when that same justice has argued that the court should not do it's job; when he effectively argues that the president has the power to turn the Constitution on and off at all; when he publically disregards the responsibilities he was directly selected to perform, he should be impeached. Scalia has done all of these and done them repeatedly. If someone can come up with another Supreme Court justice with such blatant disregard for the rule of law, I'd be interested to hear it before arguing that they should also be impeached.
Conservatives Don't Understand The Rule Of Law
Having just read John McCain's response to the Supreme Court's decision on the Gitmo detainees, I think the entirety of the right may be in need of a refresher course in how the rule of law works. On Friday, McCain (who I'm starting to think is losing his mind) said "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country..... We will regret very much in the days and months and years ahead this decision by the United States Supreme Court". Now, leaving aside both the lack of historical knowledge evident in that and the simple fact that it directly contradicted his own words 24 hours earlier, McCain also made a big deal of the fact that Supreme Court justices are unelected and unaccountable.
The right loves to do this. One of their favourite ways of disagreeing with the judiciary (after "activist judges", naturally) is to accuse the judges of overturning the "will of the people". Antonin Scalia's bile-fuelled rant of a dissent makes for entertaining reading, in the same sense that complete surrealism can be fun to watch. Scalia (who, in my view, should be impeached for this dissent alone) firstly, restates the right's talking points about the nation being attacked by terrorists and then essentially says that the Supreme Court has no right to disagree with the President during "time of war" (can someone please point me to the formal declaration of this war? Chimpy's say-so doesn't count, there is a formal process which must be gone through to argue war time powers). The reason I say Scalia should be impeached is not because I disagree with his dissent (although I do), it is his blatant attempt to shirk the responsibility of the court.
I had this exact same arguement a few weeks back with regard to the California Supreme Court's decision which struck down the state ban on same-sex marriage. Your Founding Fathers made the Supreme Court unelected for a reason, the exact same reason why virtually every civilised nation and most states make judges unelected: To ensure they don't have to follow the "will of the people". It is not the job of the judiiciary to follow the whims of the majority or to uphold the president's status or, even as Scalia seems to believe, to protect the American people from terrorist attack. The Supreme Court (and all other courts, come to that) have only one responsibility: Their first, last and only responsibility is to state the law as they understand it. That's not to say they can't be dead wrong on occasion (Dred Scott comes to mind) but the judiciary is unelected and independent to guard against the tyranny of the majority, not to enable it. If the court's decision causes the death of Americans (which it won't), that is to be regretted but, with respect, not the court's problem. The court's problem is the interpretation and application of the law, nothing else.
Scalia is not a stupid man, he knows what the function of the judiciary is and he knows how the principal of judicial review works. Unlike his opinion in Bush V. Gore (a decision so nakedly politically motivated that the Supreme Court had to declare that on this sole, single occasion, the principle of stare decisis didn't apply), he barely even tries to argue with the court's legal reasoning. Instead, Scalia's sole nod to legal reasoning is his arguement that the Constitution's protections were never meant to apply outside of US borders which is, firstly, irrelevent and secondly, disproved by over a century's precedent, treaties signed (which the Constitution makes part of the US law) and teh Founders own writings. If Scalia had come to the court with an honest dissent on legal grounds, I could find some sympathy for him or, at least, a little respect. Instead, Scalia tells the court that it has no right to do it's job. Scalia's duty is to uphold the Constitution and the Constitution is very clear about when and how habeus corpus can be suspended; in cases of rebellion or invasion ONLY. Scalia disregarded that.
When a Supreme Court justice ignores the Constitution; when that same justice has argued that the court should not do it's job; when he effectively argues that the president has the power to turn the Constitution on and off at all; when he publically disregards the responsibilities he was directly selected to perform, he should be impeached. Scalia has done all of these and done them repeatedly. If someone can come up with another Supreme Court justice with such blatant disregard for the rule of law, I'd be interested to hear it before arguing that they should also be impeached.
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