The Infallible Courts
BY Herschel Smith
3 years, 8 months ago
High priests of law, garbed in black robes according to the liturgy.
Judge Silberman wrote a dissent challenging not only how the majority applied New York Times Co. v. Sullivan to the case before it but also challenging the entirety of the Supreme Court decision. It’s this last aspect that makes Silberman’s dissent noteworthy.
Silberman points out that “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. *** As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”
Although Silberman acknowledges the difficulty inherently in overruling “landmark” cases, he has come to see the 57-year-old New York Times opinion as “a threat to American Democracy. It must go.” And then Silberman goes into overdrive defending the Constitution.
He makes plain his disdain for Justice Kennedy’s contention that “criticism of the Court is tantamount to an attack on the Constitution.” Instead, “I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb.” It’s that kind of dissimulation that is “the real attack on the Constitution.” Indeed, “[t]he notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.”
I have only one correction I would make. I don’t have “little regard” for such legal antics. I have no regard for it.
So just to make clear, I consider all such decisions to be illegitimate, judges and justices who do that sort of thing to be usurpers, impostors and tyrants, and all of their decisions illegitimate – even those decisions which benefit me. I don’t need them or want them. To me they are all clowns and carnival barkers, pretending authority and wisdom, and when God sits in the heavens and mocks them, I follow suit here on earth.
Is that clear enough for you, Mr. Kennedy?
On March 21, 2021 at 8:45 pm, Frank Clarke said:
In his 50th-anniversary homage to Hayek’s “The Road To Serfdom”, Thomas Sowell observed:
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How odd that the clearest thinkers in modern America would be Clarence Thomas and Thomas Sowell, men who, in other times, would have been relegated to obscurity.
On March 21, 2021 at 8:47 pm, Frank Clarke said:
Let me try that again…
In his 50th-anniversary homage to Hayek’s “The Road To Serfdom”, Thomas Sowell observed:
(begin quote)
Perhaps the cleverest expression of the distinction between “real” equality and merely formal equality was made by Anatole France when he said: “The Law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.” Less witty but more insistent versions of the same idea underlie many policies today which promote quotas and other “results” ― with the ironic legal result that the Supreme Court finds itself virtually every year forced repeatedly to make scholastic distinctions and Delphic pronouncements, in order to maintain the appearance of administering legal principles when it is in fact deciding how far to sacrifice those principles for the sake of social “results.”
(end quote)
How odd that the clearest thinkers in modern America would be Clarence Thomas and Thomas Sowell, men who, in other times, would have been relegated to obscurity.
On March 22, 2021 at 12:17 pm, Chris said:
I think the SCOTUS decision most needing to be overturned is Marbury v. Madison. In that decision the court seized the power to interpret the Constitution. The power of the federal government to be the arbiter of the Constitution is nowhere granted in it. By the 10th amendment that power belongs to the states, or to the people. I am not sure how the states or people would work it out, but it is theirs to do.
On March 22, 2021 at 12:56 pm, blake said:
I once told someone that “just because the Supreme Courts deems something to be Constitutional, it isn’t necessarily so.”
The response? “Yes it is!”
Sigh.
On March 22, 2021 at 11:34 pm, xtphreak said:
… An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed. …”
Norton v. Shelby County, 118 U.S. 425 (1886)