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About Street roots. (Portland, OR) 1998-current | View Entire Issue (March 3, 2017)
Page 9 COURT, from page 8 were shocked. The really pointed part about your question that is interesting is why didn’t the chief justice (John Roberts) stand up and give a speech? Why did none of the justices, until Ruth Bader Ginsberg popped up in July, talk about it? The answer is that the justices believe the totality of the court’s legitimacy comes from being above politics. For them to weigh in and say anything would have sounded partisan and political. They just decided to stay above it. That’s why Merrick Garland never gave a press conference; that’s why you never saw him. There was just radio silence. are his thoughts on judicial power and ruling on the executive branch. We have tiny hints. Some of them are positive and suggest that he might meaningfully check a President Trump. As toxic and hellish as the confirmation process is, those will be four days in which one of the things that should be probed is what do you think are the outer reaches of executive power? What role does the court play in wartime? Getting him to answer some of that is to begin to have an answer to your question. It’s going to have to transcend left and right. A.W.: The idea of an activist judicial branch is becoming more o f an issue, especially because the judicial system has already stopped the Trump administration’s immigration ban. Some could argue that the judicial branch is being too activist; others wouldsay this is the court simply upholding the country’s constitutional values. What do you think? Scaluffron^rnw ^ 1 vacancy for a year, after the 2016 death o f Justice Antonin T?™ T T ™ ”1 F rm t mw’ fivm Clarence Thomas, Scalia, Chief Justice John Roberts, Anthony Kennedy and Ruth Bader Ginsburg. Back row from left- Sonia S o to m ^ S k p h e n G , Breyer, Samuel A. Alito and Elena Kagan. * " T ie ju d ic ia l branch Is the one branch, by deslgn, that Is the w a B te r-w jm rlta ria a branch» I t Is the only branch deslgnei to protect minorities» I f yea ie a ^t take that eery serionsly, then the o nly th in g that matters is what the ma|©nty wants/* D.L.: I think “activist” is as trite and silly a formulation as originalism is. They’re at very opposite ends of a very shallow spectrum. Judicial conservatives have co-opted the term. Obergefell (which legalized gay marriage), according to somey was an activist decision. It really proves nothing at all other than you don’t like the decision. Yet, it has such saliency and resonance right now. You have to go back and think about what the job of the judicial branch is. Is the judicial branch meant to rubber stamp everything the president does? Is everything Congress passes Constitutional? Or dp. sell fo r Americans, given its tendency to be arcane and wonky. Do you think that’s changed since Trump has become president? checks and b alan ces have real forcé’ and Ark people g o in g to be m ore interested in the meaning? ! is o , every once in a while, judges will say, “This is unconstitutional.” The judicial branch is the one branch, by design, that is the eounter-majoritarian branch. If you think about all the high-water marks that we think about - Loving v. Virginia, Brown v. Board, Obergefell, Roe v. Wade - it is the only branch designed to protect minorities. If you don’t take that very seriously, then the only thing that matters is what the majority wants. A.W.: You said that rule of law really matters to Americans. You’ve said before that coverage of the Supreme Court can be a tough O A H L IA U TH W 1CK, -J O U R N A L IS T workings of the judicial system? D.L.: I think my simple answer, but the true answer, is that 50,000 people listened to the 9th Circuit oral argument (on Trump’s immigration ban) - the most arcane oral argument, basically on civil procedure - for an hour and were riveted. Those people were not listening because they were experts on civil procedure. They really cared. This lawsuit really helped animate what the resistance was going to look like. I was saying over the summer, “Merrick Garland isn’t going to confirm himself. Vote.” And people didn’t vote. One of the things that has happened is that having people on the ground, caring, has really energized the judicial branch. Part of the reason the 9th Circuit was able, across partisan lines, to write an opinion saying “no way” is not simply because Trump is digging his own grave with the judicial branch. Seeing people come out to airports and lawyers hunched over laptops trying to file motions (was crucial). It matters that people care. That’s my feeling about telling people don’t count on the courts. (The courts) have no inherent power or authority. What they have is the capacity to take your outrage and funnel it into something. If Trump says “so-called... judges” and “somebody should take out a judge,” unless the public fights, the judges cannot protect themselves. A.W.: As the Garland nomination was playing itself out, I was surprised that the court didn’t communicate with the Senate in some way and say that the Senate has a constitutional duty to “advise and consent” to the president’s nomination. Why do you think something like that did not happen? D.L.t There is no mechanism to force the Senate to do anything. There’s no law. It’s a norm. There’s nothing in the Constitution that says, “If the Senate fails to ...” People O P A H A.W.: When Gorsuch was nominated, NPR played a tape of Scalia saying, “The Constitution that I.interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. ” So much of the conversation around who should be the next Supreme Court justice has involved the concept of originalism. Why do you think that concept has so much appeal? D.L.: I think that the genius of originalism - and this, in many ways, is the genius of Scalia, because he in many ways becomes the iconic thinker and writer about this - is that it’s a philosophy of restraint. It says that judges are not all powerful. But the restraint, says Scalia, is that we can’t v o te o u r w him . W e have to b e co m pletely tr u e to th e w o rd s in th e tex t. I th in k in a ;couh'trsr,posrB row ni v/ISoard o f' JM ucation, post-Vietnam, even Watergate, that was very anxious about an unchecked judicial branch, the idea was that judges, as Chief Justice John Roberts put it, are just umpires; “all we’re doing is calling balls and strikes.” It’s that same sort of fake humility. ! say it’s fake because of course judges are not calling balls and strikes. What they do is deep and broad and absolutely involves their own interpretations and their own experiences. Originalism is charming. It mollifies people’s anxieties. It’s clever and very enchanting. But it doesn’t do what Scalia would have said it did. A C E A All Profits to Social Justice Cannabis with Benefits Panacea is a non-dividend, triple-bottom-line company. We commit 100% of profits to affordable housing and social justice. Everyone else is just sellin' weed. 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