analogies

[David Golove]

I didn't suggest that the Court's decision is the most unjust decision the Court has rendered. That would be absurd. The Court's decisions have sometimes imposed gross injustices (as some think is the case with Roe/Casey, although I disagree). When the Court acts in that fashion, there is every reason to criticize it harshly, perhaps to do more, as in Dred Scott. The issue isn't the depth of the injustice or even the importance of the issue. The problem in Bush is with the Court's intervention directly into the electoral process, which is at the core of the democratic system. Democratic processes depend on public confidence and trust. Public confidence underwrites legitimacy and is the foundation of a democratic system, without which we can't withstand the kind of blows that Roe/Casey or Bowers represent, nor sustain the political system that allows us peacefully to resolve such fundamental conflicts of values. This applies equally to public acceptance of, say, tax cuts for the rich/tax equity, privatizing/bankrupting social security, etc. The deepest problem with Bush is that it undermines the confidence of part of the polity in the democratic system. To part of the polity, It looks like having a majority of members of the Court from your political party is what it takes, at least sometimes, to get elected. In this respect, Bush is a continuation of the constitutional crisis which the impeachment affair provoked. To a great many members of the polity, that appeared to be an attempt at legislative usurpation of the democratic process, whereas Bush is a case of judicial usurpation. Of course, how serious a blow these are depends in part upon how plausible impeachment/Bush were under existing constitutional understandings. At least as to Bush, all the efforts of its supporters, sophisticated as they may be, appear to be apology for what was quite evidently a raw power grab. Without wanting to exaggerate the problem, I don't believe that democratic processes are secure in any country, no matter how long they have be
are headed down a dangerous path at this juncture.

>>> akoppelman at NWU.EDU 12/14/00 04:42PM >>>
David Golove's disanalogy is a thoughtful one, but I think that the Roe
analogy is still pretty strong.  Abusing the judicial power in order to rig
an election is pretty bad, but it pales by comparison with licensing the
murder of millions, which is what, if you're a pro-lifer, Roe did.  I think
Roe was rightly decided, but I've never thought that its reasoning was
persuasive.  It wasn't until the day before yesterday that I really
appreciated the sense of shock and betrayal that pro-lifers must have felt
in 1973:  in both cases -- at least from the perspective of the viewer in
question -- the judiciary arrogates to itself the power to decide a matter
of urgent concern that it is not its business, decides it wrongly, and
offers a ridiculously vapid justification for what it has done.


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Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:  akoppelman at northwestern.edu
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