28 June 2007

Waiting for Roberts

He said he's issuing opinions this morning. He did.

Today is (almost certainly) the last day of the Supreme Court's term, with no further sittings scheduled (although that may change, and we'll know in about an hour). I've been particularly distressed by a lot of the decisions this term. Although the IP-oriented decisions weren't bad (except, in one instance, in having to be issued at all), much of the remainder has been inexcusably ideological in basis. I won't try to pretend that ideology never enters into judicial opinions, which are after all just writing; as Orwell wisely noted (and I'm paraphrasing slightly to emphasize one aspect), all writing is political... and the decision to take overt politics out of a piece of writing is itself a political decision. However, there has been a disturbing trend toward doublethink in some of the more-controversial opinions.

If I had to choose a theme for this term, though, it would not be political per se; it would instead concern separation of powers. The judicial power includes — necessarily — the power to find the facts that apply to particular disputes that are properly before a court. In at least six opinions this term, the Supreme Court has instead deferred to another branch's "version" of factfinding as it applies to a particular dispute. I'm not saying that legislation and executive action should ignore factual foundations; I certainly hope that there is a factual foundation for any statute or administrative action! Instead, I'm saying that one cannot give statements of fact from other branches of government a free pass, because it's the judiciary's inherent job to be the arbiter of facts in particular cases. Even the "substantial evidence" rule that applies to judicial review of administrative decisions provides a check on improper factfinding by nonfactfinding branches — just look at the Seventh Circuit's reviews of immigration decisions over the last few years! One can certainly argue that it's not a sufficient review, but the problem is that now we're talking about balance. On the other hand, the way the Court treated the Congressional "factfinding" in Carhart, and the school administration's "factfinding" in Morse, reflects complete abrogation of its duties to inquire.

That is bad for the rule of law. Keep in mind that the "rule of law" is ultimately a liberal value, and ultimately has liberal consequences, and you'll begin to understand why I so strongly support it. The alternative(s) to rule of law all eventually boil down to rule of might, an inherently conservative (and even reactionary) system, whether that might is economic, military, or theocratic.