Sunday, September 23, 2012

"[J]udges are ill suited to resolve social problems."

Dahlia Lithwick has a column at The Nation entitled, "One Nation by and for the Corporations." The unsurprising thesis is that the courts, most notably the Supreme Court, are bought and paid for by business interests. According to Lithwick, this campaign is insidious and damaging:
There is ample language in the Court’s recent rulings to demonstrate that judges are ill suited to resolve social problems, that such efforts should be constrained and monitored and fundamentally mistrusted. But it’s one thing to trim the sails of the judicial branch; it’s quite another to transfer power that once rested with the judiciary directly back to groups that hold power already. Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.
It is ironic to see that the liberal position has become that judges are ill-suited to solve social problems. But perhaps judges are ill-suited to resolve social problems only when their resolution is favored by conservatives. Or perhaps, as some say, liberals should not hate the players, but rather hate the game (even though they made up the rules).

One could also quibble with Lithwick's examples of conservative judicial activism. Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

For some previous coverage of the Supreme Court's (supposed) fealty to big business interests, please see here and here.


  1. Liberals made the rules?

  2. In the game of using courts to change social policy, I think the answer is yes.


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