RCH: 10 most divisive Supreme Court justices in American history

It turns out that SCOTUS appointments have had a long history of dividing American society. An excerpt:

9. Roger Taney (1836-64). Taney rose up the political ranks as Andrew Jackson’s right-hand man. Jackson tried to get him on the Supreme Court in 1835 but his nomination was rejected by anti-Jacksonian Whigs in the Senate. After the Whigs were swept away in the 1836 election campaign, Jackson renominated Taney, but this time for the position of Chief Justice, and he was confirmed 21-15 after a bitter debate in the Senate. The Taney court is responsible for the Dred Scott case that tore the fledgling republic apart, and for helping Jackson abolish the national bank. Taney and Lincoln clashed often, too, as Taney ruled that Lincoln’s suspension of habeas corpus was unconstitutional, but Taney never did go home during the Civil War and served out his term as Chief Justice until his death in 1864. He holds the second-longest tenure of any Chief Justice.

Please, read the rest, and try to remember: this divisiveness is a feature of the system, not a bug.

INDIA: A case study in the demise of representative democracy

India of 1947 had battled decades of colonialism to embrace self-rule. Whatever divisions seeped through party ranks, coalesced – and how beautifully – to fight for the right the people to a democracy. Having a common enemy helped. Compounded by the ability of the political leaders of that time to weave magic through words, connecting the plights of the millions to the queen-ship of one propelled movements across the breadth of the Indian subcontinent. While much has been said of the academic prowess as well as the oratory skills of the Founders, it was their ability to connect across barriers of identity that ultimately pushed the wheel. How dearly they protected their freedom of speech, expression and press is perhaps telling of the importance they assigned to being connected with those they had chosen to represent. How is it then that a deeply flawed election system and disjointed lines of public communication yielded one of the biggest civil disobedience movements the world had ever seen?

In terms of representation and reach, India 2018 is better abled than India 1947. And yet, it fell upon the unelected shoulders of four men and one woman to correct a deeply violent, colonial and bigoted law. The right to sexual identity was granted by five cis heterosexual individuals; the ones in need of representation reduced to being mere petitioners. India celebrated breaking off one more shackle, the Judiciary reveled in being the harbinger of liberal values to the Indian legal system yet one more time and the Parliament, as always, stayed mum. It is not that either of the institutions have embraced staunch anti/pro liberal positions. The Indian judiciary has its share of misogynists much like the Parliament. Misogyny is not illegal. But what is illegal is the Parliament’s distance from her electorate. Even if one were to contend that a majority of India does not support homosexuality, the increasing momentum of the movement should have propelled an informed debate within and without the Parliament. Instead, the government chose to not object to the petitions filed in favor of decriminalizing homosexuality as if that is the extent of the responsibility they owe to the LGBTQ community of the country. The distance between a judicial decriminalization of homosexuality and one done through a legislative device is the distance between a populist democracy and a representative one. The counter-majoritarian difficulty seems almost trivial when democratic institutions lose their representative character.

The biggest reason behind the rising legitimacy of an essentially non-democratic institution as the Judiciary is not a power grab by the Supreme Court judges. Howsoever activist they might get, the requirement of giving a reasoned decision tempers their emotions. The Indian Parliament, on the other hand, has come to rely on this increasing politicization of the judiciary to avoid political battles that might require concessions from their mostly unreasoned manifestos. The result is a lack of deliberation that is disturbingly dismal for a democracy as huge as India. The requirements of representation have come to be restricted to a periodical holding of elections. Members of Parliament are neither Burkean agents nor Pateman’s representatives. They are a political class unto themselves working towards a steady demise of the largest democracy in the world.

Nightcap

  1. You’ll Hate This Post On Brett Kavanaugh And Free Speech Ken White, Popehat
  2. Kavanaugh and Executive Power – the Good, the Bad, and the Overblown Ilya Somin, Volokh Conspiracy
  3. Judge Kavanaugh and Justice Kennedy’s Free Speech Legacy Jonathan Adler, Volokh Conspiracy
  4. How the Kavanaugh Nomination Reveals a Deep Challenge to Our Democracy David French, National Review