Thursday, March 18, 2004

Congress Overrulling the Court
Dahlia Lithwick over at Slate has this piece on the issue of a bill in Congress that would have it assert that it will overrule the Supreme Court. I'm sorry, but reading her piece, I just can't agree. Here is why
1) I am of the opinion that on big conlaw questions the Supreme Court acts as a defacto legislature
2) I am not convinced that the mishmosh of conlaw that has emenated from the bench in the last century (emenations and penumbras, carlone products footnote 4, Griswold and Roe Wade but not lochner, Grutter, etc. etc. etc. etc.) shows that the judgement of the court is demonstratably superior to that of the legislature
3) I'd rather have my legislatures electable and accountable in some form than appointed for life and obsessed with legacy/dinner party invitations.
4) I don't buy the argument that court has its place in the sun to preserve rights that are tremendously unpopular. Actually, I expect the court to repeatedly cave to some form of elite opinion, whatever that shall morph to be. If our rights are not viewed as useful by elites, they will cease to exist, court or no court.

On the other hand, I think this bill is incredibly stupid, because it is political suicide. So I guess in some form I'm on the same page as Dahlia.

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