Captain Ochre
June 16th 2003, 12:58 PM
Let me start by making it clear that I am not an attorney (though I know a few). Law is simply one of many side-interests for me.
I picked up Martin Garbus' Courting Disaster (subtitled "The Supreme Court and the Unmaking of American Law") in order to get a left-leaning perspective on the topic of Constitutional law.
I have not read the entire work, but rather sought out the portions of greatest interest (those dealing with religion and the role of the USSC as whole).
My impression is that Garbus takes the correctness of liberal interpretation for granted. In the first chapter, he states that "no court in this century has seized power the way the Rehnquist court has," and follows that with "(I)t (the Supreme Court--C.O.) did what a court interpreting our Constitution should do to deal with issues of race, class, poverty, religion, and power in such a way as to protect the majority of Americans, including the aged, the disabled, women, and minorities."
The above provides the surprising key to Garbus' book: His book seems designed to preach to the choir. My perusal of the work provides no indication that he argues that the pre-Rehnquist court made decisions better in keeping with the Constitution according to any objective criteria. Rather, his book relies on the reader to already agree with the various points of law that are being challenged (if not overturned) by the modern USSC.
One contention surprised me, and that is Garbus' claim that the "radical right" is bent on reducing federal power. Skeptics who fear a right-leaning theocracy could perhaps take solace in his opinion.
His view seems to create a paradox, in that the Supreme Court is grasping for power while simultaneously reducing their power in terms of limiting the scope of federal legislation that the Court is likely to find on its docket. Perhaps the message is that if the Court has the power to limit the greater power of the federal government, then the USSC is dangerous. Again, that view depends on agreement with Garbus' ideology, afaics.
Still in the first chapter, Garbus appears to make a glaring error:
So successful was the Republican-driven judical avalanche that not even Bill Clinton could stop it. Scandals, and the limits imposed upon him by a Republican Congress after 1994 (the first time in forty years that one party controlled both houses), forced him to pick his battles, and the judiciary was not a priority.
Surely Garbus intended to write that it was the first time in forty years that the Republican party had controlled both houses of Congress (Check to see who controlled Congress in the 70's, Martin, and spot check for Democratic control of both houses prior that time as well).
Doesn't sound as scary that way, though, does it? Shame on the editor for not catching that gaffe.
The chapter that I read most fully was the one on religion cases. In that chapter, Garbus employs a technique that perhaps permeates the work a a whole: Make the changes in law sound ominous without actually dealing with whether or not the changes are appropriate or not.
Pat Robertson's resignation as head of the Christian Coalition in December 2001 "confirmed the ascendence of a new leader of the Religious Right in America." It seems to be George W. Bush.
John Ashcroft, who detests nonbelievers, considered running for President in 2000 as the candidate for the Religious Right. Most of the men and women nominated to the bench share these views. This was exactly what the writers of the Constitution did not want.
The James Madison view, the distrust of anyone who has power, is reflected in the First Amendment's Establishment Clause and Free Exercise Clause. Government cannot aid and support religion, and religion cannot aid and support government.
The above snippets are seemingly typical of Garbus. He's quite willing to tell you what the authors of the Constitution intended, and apparently reluctant to justify his belief that they held such a view. Without that rationale, the book does relatively little to inform us of the bedrock issues involved in the judicial struggle. Instead, the work serves as a TWeb "Janitor's Closet" where Garbus airs his disappointment that the judicial landscape is changing in a manner he doesn't like.
I picked up Martin Garbus' Courting Disaster (subtitled "The Supreme Court and the Unmaking of American Law") in order to get a left-leaning perspective on the topic of Constitutional law.
I have not read the entire work, but rather sought out the portions of greatest interest (those dealing with religion and the role of the USSC as whole).
My impression is that Garbus takes the correctness of liberal interpretation for granted. In the first chapter, he states that "no court in this century has seized power the way the Rehnquist court has," and follows that with "(I)t (the Supreme Court--C.O.) did what a court interpreting our Constitution should do to deal with issues of race, class, poverty, religion, and power in such a way as to protect the majority of Americans, including the aged, the disabled, women, and minorities."
The above provides the surprising key to Garbus' book: His book seems designed to preach to the choir. My perusal of the work provides no indication that he argues that the pre-Rehnquist court made decisions better in keeping with the Constitution according to any objective criteria. Rather, his book relies on the reader to already agree with the various points of law that are being challenged (if not overturned) by the modern USSC.
One contention surprised me, and that is Garbus' claim that the "radical right" is bent on reducing federal power. Skeptics who fear a right-leaning theocracy could perhaps take solace in his opinion.
His view seems to create a paradox, in that the Supreme Court is grasping for power while simultaneously reducing their power in terms of limiting the scope of federal legislation that the Court is likely to find on its docket. Perhaps the message is that if the Court has the power to limit the greater power of the federal government, then the USSC is dangerous. Again, that view depends on agreement with Garbus' ideology, afaics.
Still in the first chapter, Garbus appears to make a glaring error:
So successful was the Republican-driven judical avalanche that not even Bill Clinton could stop it. Scandals, and the limits imposed upon him by a Republican Congress after 1994 (the first time in forty years that one party controlled both houses), forced him to pick his battles, and the judiciary was not a priority.
Surely Garbus intended to write that it was the first time in forty years that the Republican party had controlled both houses of Congress (Check to see who controlled Congress in the 70's, Martin, and spot check for Democratic control of both houses prior that time as well).
Doesn't sound as scary that way, though, does it? Shame on the editor for not catching that gaffe.
The chapter that I read most fully was the one on religion cases. In that chapter, Garbus employs a technique that perhaps permeates the work a a whole: Make the changes in law sound ominous without actually dealing with whether or not the changes are appropriate or not.
Pat Robertson's resignation as head of the Christian Coalition in December 2001 "confirmed the ascendence of a new leader of the Religious Right in America." It seems to be George W. Bush.
John Ashcroft, who detests nonbelievers, considered running for President in 2000 as the candidate for the Religious Right. Most of the men and women nominated to the bench share these views. This was exactly what the writers of the Constitution did not want.
The James Madison view, the distrust of anyone who has power, is reflected in the First Amendment's Establishment Clause and Free Exercise Clause. Government cannot aid and support religion, and religion cannot aid and support government.
The above snippets are seemingly typical of Garbus. He's quite willing to tell you what the authors of the Constitution intended, and apparently reluctant to justify his belief that they held such a view. Without that rationale, the book does relatively little to inform us of the bedrock issues involved in the judicial struggle. Instead, the work serves as a TWeb "Janitor's Closet" where Garbus airs his disappointment that the judicial landscape is changing in a manner he doesn't like.