January 13, 2006
Justice Who? ::
legal — tagged civil rights, conlaw, judicial appointments, legal, politics and SCOTUS
1:55 pm
I’m back at school, but I’m trying to keep this place in mind as my life gets more busy over the coming weeks. With that in mind, I just wanted to stop a moment a say that, despite my history of interest in all things Supreme Court, I have been quite uninterested in watching the Alito hearings because, barring some big surprise (which is becoming less of a possibility as time goes on), he will likely be confirmed. But with that, I also wanted to note the interesting discussions that are going on in the margins of the confirmation hearings. Case in point, Jack Balkin has this to say in his post on Constitutional Catechism:
No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt—which extends Griswold to the right of single persons—and Reynolds.
One of the recurring themes in my legal education is the limited power of the Supreme Court in setting broad laws. So, even if the Court did rule that segregation of public education violates the Equal Protection clause, the idea that the federal government should activly pursue a civil rights agenda did not gain legitimacy until Congress passed the Civil Rights Act of 1964. In that regard, the decisions of the Supreme Court always seem to be in question until Congress somehow endorses the Court’s decision—typically through legislative action. With that in mind, it’s pretty interesting to see how Congress has progressed in its acceptance of some rather progressive—not to mention controversial—Supreme Court decisions, even those handed down within my lifetime. With that in mind, it makes me happy to see that, although the law moves slowly, it hasn’t totally stopped moving forward.
