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Monday, December 19, 2011

Bullshit, judicial activism, and running against the courts

A few thoughts, piggybacking on Paul's post on Newt Gingrich and bullshit (and I share most of his views about Gingrich as a walking collection of buzzwords) as well as this post from Al Brophy on Gingrich's (ahistorical) focus on the federal courts as his new electoral straw man. A couple of thoughts.

First, I wonder if "bullshit" doesn't somehow double back to the concept of hypocrisy. So part of what makes something bullshit is not only that the speaker does not care if it is wrong, but that adherence to the stated idea is situational and inconsistent. That inconsistency demonstrates that the speaker is bullshitting--that he does not care whether what he is saying is true or not For example, Gingrich is so outraged by the work of federal judges that he believes that, as president, he is free to disregard judicial decisions he believes are incorrect. He cites Boumedienne as an example, as well as a hypothetical case invalidating bans on same-sex marriage. But he rejected the idea that President Obama could ignore the Supreme Court if it invalidates ACA's individual mandate. His explanation? The president's power to do this is limited to "extraordinary" or "rare circumstances." What is extraordinary? He does not say, although in all likelihood it is when he disagrees with the decision. So this strikes me as a good example of bullshit--the statement of a principle to which the speaker purportedly adheres but to which he will not, in practice, meaninfully adhere, and which he knows he will not meaningfully adhere

Second, Gingrich's attacks are going beyond the argument against the imaginary "judicial dictatorship" or in demand of a "modest" judicial role or a judiciary that "resrict[s] itself in what it is doing." All those buzzwords logically suggest a greater unwillingness to invalidate federal or state legislation. Gingrich is talking about hailing judges before Congress for decisions with which members of Congress "disagree," which appears to apply regardless of which way the courts come out. So he will be just as outraged if SCOTUS upholds the individual mandate. That perhaps would be an example of judicial modesty and deference, but he still disagrees with it. And, under what he is arguing, is the type of judicial misbehavior that warrants being called to the principal's office, if not outright impeachment.

Third, does it seem odd that Gingrich is still running against the federal courts and creeping secularism, when we had eight years of George W. Bush appointments and three years of Senate resistance to Obama appointees? It obviously makes a useful strawman and, as some have suggested, plays well to the Republican primary voters. But it also seems so Culture-War Era 1990s--i.e., back when Gingrich last was in power--and disconnected from the very different realities of 2012 policy concerns.

Fourth, Paul is right that the use of buzzwords from politicians and political candidates is nothing new. And while I believe Gingrich is an extreme case, he is hardly the only one who does this. But I wonder if the reaction to the buzzwords on this subject is a lot like the reaction of many lawyers to movies and TV shows that get the law wrong--we notice these particular buzzwords, and are bothered by them, because our familiarity with these concepts means we understand just how badly they are being mangled in the political discussion.

Posted by Howard Wasserman on December 19, 2011 at 12:44 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink

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