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Power to the (Nine) People

December 16th, 2004 · No Comments

From Will Baude’s latest TNR piece:

Keeping cameras out of the courtroom and allocating argument time strictly, as Rehnquist has done, creates the image of a formalistic, aloof Court. This has the benefit of allowing the Court to appear above the political fray; but it has the disadvantage of making the Court seem like an anti-democratic institution.

I’m actually all in favor of broadcasting oral arguments, since it might make court decisions seem less like these mysterious edicts, prompt more interesting public debate on various contentious issues, and generally raise the level of discourse if people were watching some pretty fine legal minds put through their paces. But, not to put too fine a point on it, the Court is an anti-democratic institution. It’s doing its job correctly when it at least sometimes tells significant majorities, either in the state or the nation as a whole, that they can’t do something they’d like to do. I get a little agitated whenever some politican blasts a court for frustrating “the will of the people.” That’s what they’re supposed to do. Why bother with a bill of rights or enumerated powers unless the will of the people (as putatively expressed by their representatives, anyway) is supposed to sometimes be frustrated? If one thinks a particular decision is wrong, or that the court is issuing judgements on topics outside its authority, then fine, say that. But being anti-democratic is, as they say, a feature of the Court, not a bug.

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