This decision was particularly irksome today, becuase there were two really interesting Op-Ed pieces in today's paper.
The first, by John Tierney was, as he called it, a "modest proposal" for "The Solve-Everything Tax:"
I have a modest proposal to fight global warming, save energy, cut air pollution, ease traffic congestion, reduce highway fatalities and, while we're at it, reform Social Security.I originally thought this was a spoof, but he's actually got a plan to make this work.
All we have to do is raise the federal gasoline tax by 50 cents per gallon and refund all the new revenue directly to Americans by putting it in new Social Security individual accounts.
He's also got an answer to Democratic opposition to private accounts:The $3-per-gallon price probably isn't going to last. Suppose, as some experts do, that the price will end up sooner or later back around $2 per gallon. And suppose you gradually phase in the tax only when prices fall - say, an extra dime of tax per gallon whenever the retail price falls by 20 cents. Consumers would still see their costs declining at the pump, so there'd be no sudden shock at any tax increase.
Some people would complain about any new tax, but at least they'd get their money back. Americans hate seeing today's gas taxes being diverted to thousands of pork-barrel projects like horse trails in Virginia and the bridge to nowhere in Alaska. These new tax revenues would be divided equally among all workers and go right into their personal accounts.
As much as Democrats hate private accounts, they couldn't complain that anyone was "raiding" the Social Security "trust fund" for these accounts. Recalcitrant Democrats would have to explain why they oppose an energy policy favored by environmentalists and a social program that would transfer money to the poor. Since low-income people tend to drive less than the average American, they pay less in gas taxes than average, so they'd make money when the revenue was divided equally.But most imporessive of all, he's got buy-in from Grover Norquist of all people:
But Norquist reassured me I would not be cast into the abyss. He said a 50-cent gas tax, with all the revenue refunded to personal accounts, wasn't verboten. "If it were attached to one of the annual tax cuts that we've been passing so that the overall package reduced taxes, it wouldn't violate the no-tax pledge," he said.Interesting idea, even if it is pie-in-the-sky.
The other piece is Nicholas Kristof's "Order in the Court." (Not sure why I am including links here, but . . .). Kristof's basic thesis is that "Republicans are right to complain about judicial activism," and that it is time for both sides -- but especially the Left -- to quit relying on the courts to advance political agendas:
So, granted, the courts were often the most efficient way to advance a liberal agenda, and cases like Roe v. Wade now deserve respect as precedents. But there were two problems with the activist approach.It was something like this idea that motivated me to suggest this morning that someone like Harriet Miers -- " a good, workman-like if uninspiring Justice, someone who is unlikely to make big changes in either direction" -- is just what the Court and the Country need right now.
The first was that these rulings alienated ordinary Americans who just could not see how the Constitution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right.
The second objection is that conservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.
"Judicial activism" is usually associated with liberals, but Paul Gewirtz of Yale Law School has shown that lately conservatives have been far more likely to strike down laws passed by Congress. Clarence Thomas voted to invalidate 65 percent of the laws that came before him in cases, while those least likely to do so were Ruth Bader Ginsburg and Stephen Breyer. Indeed, Justice Breyer has written a thoughtful new book, "Active Liberty," which calls for judicial restraint and suggests that the best arena for resolving crucial national questions is legislatures rather than courts.
* * * *
That doesn't mean blindly trusting Ms. Miers or any other Supreme Court nominee. But it does mean that the main mode for seeking a more liberal agenda, such as permitting gay marriage or barring public displays of the Ten Commandments, should be the democratic process, not the undemocratic courts.
3 comments:
It is an important part of human behavior that just because something is said over and over again, it has a ring of authority. With that in mind the following qoute of theNYT author is worthy of comment for its hidden falacies:
So, granted, the courts were often the most efficient way to advance a liberal agenda, and cases like Roe v. Wade now deserve respect as precedents. But there were two problems with the activist approach.
"The first was that these rulings alienated ordinary Americans who just could not see how the Constitution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right."
Is and in other parts of the article, the author suggests that there are political agendas in certain important Supreme Court agendas. He also gives credence to the non sensical idea that there are "activist" judges.( a perjorative term that is merely a label, and once so labeled strips the judge of crediblity.). Just to make a quick point about why the quoute about prayer in schools is so off the mark. Sure it upset people, --but that is the point of the Bill of Rights. Just once in a while, a minority gets protected from what everyone else wants. Only Courts can fix this. As to prayer in schools, the historical fact is that there was a time when "prayer in shcools" was synomous protestant versions of prayer of biblical texts. Pray in schools was a hold over from the day that "commmunity schools" or common schools ( as known in Ohio), or public schools had as mission the idea of confiming and teaching the local religion. The original superintendents of educationa and Kentucky were Protestant Minsters. In fact these same "public educational Reverends" we intrumental in the mid 1800's in gaining legislative measures to assure that Catholic schools, COULD NOT RECEIVE PUBLIC FUNDS. (To confirm this just go on GOOGLE and type in common schools movement.) So placed in some historical context, when the Supreme Court struck down school prayer, there was more to the story than a activist judge carrying out some liberal atheist
agenda. It was more like a pretty staight forward application of the bill or rights. And yes, a lot of peolple were pissed. But that is the story of he Bill or Rights. My deep concern from all the judge bashing and attorney bashing going on today, is that it is clouded wiht some shallow thinking, and a rewriting of history. Today, columnists glibly write about "activists" liberals", the "will of the people", " judicial making of political agendae", --and from there go on to pontificate about the law, and the need for the judiciary to be a check on excessive and legislative power. Finally, it was the so called "least" activist judge of all who wrote the opinion striking down the federal law making burning a flag illegal....Lots of people were pissed at that too. I guess, I don't want to see people pissed off, but the problem wiht many of these pissed off people is that they like to make more crimes than are needed. Sorry for the typing, didn't have time to reread this thing.
Good comment.
I agree of course: the very purpose of the BoR is to protect minorities from majorities. But there is also a practical reality that imposes limits on the extent to which courts can do this. Courts have no power to enforce their decisions. Their ability to acutally protect rights they feel are guaranteed by the BoR depends entirely on the willingness of, first, the execuitve, and ultimately the majority to accept their decisions. There is an ever present danger that, if the courts go "too far" protecting minorties from the values/morals/will of the majority, the willingness of the majority to accept the court's decisions will end. And, when that happens, the BoR itself becomes a dead letter.
Even more than particular outcomes, we have to protect the Court itself from the majority. That may require, at times, periods of judicial quiessence and, perhaps, even of small retreats.
Another thought.
I supect there are some pretty strong parallels between what is going on today and what went on in the mid- to late-30s when the Supreme Court finaly reversed itself on the commerce clause and the due process clause.
The due process clause analogy is partciularly apt. Then it was substantive due process as related to property; now it is substantive dure process as related to liberty. In both cases, the court's decisions got out of line with what the majority felt were the apporpriate limits of the Constitution. In both cases, the majority elected Presidents (Rooselvelt then and Reagan, Bush 1, Bush 2 now) who agreed with them, and these Presidents began to put pressure on the court to chnage its views. Is it possible that the current debate over S. Ct. nominees is essentially indistingishable (in principle at least) from the Roosevely court packing scheme?
The difference, of course, is that court's the 1930s reversal opened the door to a more "progressive" agenda while the current reversal (if that is what occurs) will tend to close the door on a "progessive" agenda. But, I think the dynamics of the process are probably very similar. And, I think, we may have to recognize that majoritarian political influence on the court is an inevitable consequence of democracy.
There might be an interesting book in this idea.
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