Conlaw is politics made law. That's why it's so hard fought, on every possible battleground.
So when President George W. Bush, acting the conservative Republican, bounces a conservative black woman from the California Supreme Court to a federal appellate court that serves as the trampoline to the U.S. Supreme Court, the fight is on.
Does Janice Rogers Brown get a pass because she's black? Not according to black Illinois Democrat Sen. Barack Obama, who finds it patronizing to support Brown because she's black any more than it would be to oppose her on the basis of race. As for her views on the merits, the term he chooses is "outlandish." She's on record as praising the Lochner decision from 1905, whose name is used by students of constitutional law to characterize an era that few of us would wish to return to, where the Court engaged in a form of judicial activism, conservative version, that only the Depression and FDR's effort to pack the court, were able to overcome in 1937 in West Coast Hotel v. Parrish, overruling the Adkins v. Children's Hospital decision. During the intervening 32 years the Court, working off a view of the world called laissez-faire capitalism, struck down as unconstitutional state legislation that sought to protect the rights of workers as against the money and power of capital, i.e. factory owners in a sort of class war with the Court on the side of property and against the worker, to put it in a nutshell.
Finally, in 1937, the Four Horsemen of the Apocalypse plus Justice Roberts lost out when Roberts defected to the liberals. Never since that time has the Court returned, as a majority power, meaning five or more justices, to the view that the Court had the legitimate power to review the wisdom of ordinary economic and social legislation. Up to the elected representatives, not us, is the current orthodox view.
However, the operative distinction is "ordinary economic and social legislation," and here's where the rub comes in.
In the 1938 case called U.S. v. Carolene Products, there was an interesting footnote, #4, in which Justice Stone noted that while the Court may no longer judge the wisdom of ordinary social and economic legislation, as before, it would continue to reserve the right to look with heightened scrutiny at any state or federal legislation (or other government acts) that had the effect of denying certain categories of rights. These include
(1) textual rights, that is, rights granted in the text of the Constitution, such as in the Bill of Rights including particularly the First and Fourteenth Amendments guaranteeing freedom of expression, religion, due process and equal protection of law;
(2) government conduct that skews the political process, tilting the table, as it were, to unfairly prevent certain categories of voters from fully participating; and
(3) government conduct that tramples on the rights of politically defenseless isolated identifiable minorities (called "discrete and insular minorities" in conlaw parlance).
Political conservatives such as House Speaker Tom DeLay, Republican of Texas, and Judge Janice Rogers Brown, presumably, generally dislike the creation of new "liberal" (as they regard them) laws such as "privacy," and if not privacy, then the extension of the right to disfavored classes such as criminals, people who favor sexual freedom, abortion rights for women, homosexuals, etc. So they are willing to see judges strike such laws down as unconstitutional. But this is the sort of judicial activism that you so hate to see liberal judges exercise, reply the liberals.
Certain conlaw arguments have a way of looking terrible on the other fellow's foot, but feel quite comfortable on our own, the most common being:
- Strict vs. Loose interpretation/construction of the terms of the Constitution;
- States rights vs. federal power; see the recent Marijuana case, Gonzales v. Raich;
- Judicial activism vs. judicial restraint.
Once you see how these flags have been rallied 'round by first the conservatives and then the liberals, you might find yourself wondering whether they're worth fighting for.
Let's say you believe that marijuana should be allowed for really sick people such as Angel Raich, so it's good for California to pass a law allowing sick people to use MJ on a doctor's prescription.
However, Congress, speaking for the whole nation, and not just California, has previously spoken, passing the Controlled Substances Act (1970) making it a federal crime to possess MJ.
As we all know, our Constitution has a Supremacy Clause that holds that when a federal law and a state law conflict, guess who wins, Uncle Sam. That's how the nation, as a matter of constitutional law, keeps the states in line, otherwise you'd have a conflicting mass (or a patchwork quilt, to use the Court's metaphor) of inconsistent legislation varying from state to state. While we may have inconsistent laws from state to state, they must all at least conform to the governing document, the U.S. Constitution.
Gonzales v. Raich (2005) holds that Congress's power is greater than California's. The case wasn't about justice (Angel Raich may have been looking for justice) but about power. Angel Raich got caught up in a power struggle between two big elements, the State of California and the federal Congress.
You know who gets trampled when elephants rumble, of course.
The ants.
See the article below commenting on the confirmation by the Senate today of Janice Rogers Brown, of the California Supreme Court, to the U.S. Court of Appeals for the Federal Circuit. The reason this court is so prestigious is because it was recently established to hear civil appeals in which the federal government is a party, such as when a federal agency is sued. The justices receive a greater experience in how the gears and levers of federal power work in respect to states and individuals, so when they get to the Supreme Court, the experience of judging whether our huge bureaucracy will be allowed to continue trampling ants, is not entirely new.