Competing visions

[Sanford Levinson]

Matt directs the following at me:
 
 

1.      I don't know how to persuade Sandy Levinson that "it is [not] in
fact a delusion" to hold as an ideal that, or even to locate instances
in practice in which, judges make their decisions apolitically or
non-ideologically.  Maybe a beginning to a meeting of our minds is to
ditch the adjectives "political" and "ideological" as descriptors of
judicial behavior, since they invite a contest over their own meaning
that seems to move us away from productive exchange.

Let us try another angle of attack.  The separation of powers seems to
be a central idea in the institutional arrangements of the Constitution.
As Hamilton quoted Montesquieu in Federalist 78, "there is no liberty,
if the power of judging be not separated from the legislative and
executive powers."  It seems important, from the perspective of
Montesquieu, Hamilton, and countless others in our history who thought
they were arguing about something real, that we be able to distinguish
the three powers from one another when we see them.  Does Sandy think
such distinguishing is not within our reach?  I humbly suggest that it
is an insufficient response to identify finely-grained "close" cases in
which reasonable people might disagree about which function relating to
law--making it, administering it, or adjudicating its meaning--is at
work therein.  My question is simply, are Montesquieu and Hamilton on a
fool's errand when they put forward the distinction as a gross one?

This may remind people of Pres. Bush's oft-repeated remark that he wants
to put on the federal courts judges who will not "legislate from the
bench."  I am almost as tired of hearing that as anyone else might claim
to be, since its sheer repetition has had a numbing effect, without
reassuring me about the quality of the president's nominees.  But Bush
uses the expression so much because the American people understand it to
be essential to our system of government that judges not be legislators
and vice versa.  Are they wrong?

 At some level I do indeed see a difference between courts and the other
branches, and there are clearly kinds of "legislative from the bench"
that I would oppose precisely on the grounds suggested by Matt.  But my
examples are, e.g., the string of sovereign immunity cases, which rests
on not a scintilla of textual authority (as John Manning, who surely
doesn't share my general politics, has demonstrated beyond doubt), and
the scandalous Section 5 cases.  I am purposesly using overheated
language precisely because I suspect that Matt (or at least some people
who generally share Matt's political views) might view them as "getting
the Constitution back on track" or something like that, while pointing
to other cases (Lawrence and Roper would surely be at the top of the
list) as examples of such legislation.  
 
So I don't think that M. and H. were on a "fool's errand," since, as I
conceded above, all of us, sooner or later, return to some version of
the argument.  Rather, I don't think the distinction is very useful in
most of the concrete cases that in fact get to the Supreme Court.  
 
Although he is now too old to be considered, I'm genuinely curious what
the right these days would think of my colleague (and friend) Lino
Graglia as a potential justice.  That is, I have often described Lino
(to his face) as a parliamentarian who really and truly is appalled by
judicial review.  These days, I find that a more compatible position
than, say, Scalia's or Thomas's.  Lino, for example, wrote a National
Review piece attacking Lopez.  
 
I suspect this won't really satisfy Matt, but it's a first approximation
in what I trust will be a continuing dialogue.
 
sandy 
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