James Frank Solís

04 April 2007

9:22 PM

I was reading SCOTUSblog Monday on Massachusetts v. EPA. The case is interesting on any number of levels. For one thing, it is amusing to note the court defines 'imminent' as 100 years in the future and requiring quick action. If only it had that sort of meaning when wondering if we should invade a sovereign middle east nation which poses an 'imminent' threat to our national security. But I digress.

One of the commentators at SCOTUSblog thought it was "remarkable...that the Chief Justice, in dissent, spent his entire argument reflecting on the gateway issue of standing." I don't know why it should be remarkable that the CJ did so. After all, the Court seems to have altered the rules regarding standing. Had they not done so, it's unlikely there would have been a Mass. v. EPA for the Court to decide in the first place.

I'm not going to add anything properly legal to the discussion (for one thing, I can't), but I do have a concern, and it is this. The Court again sets aside certain provisions of the law which it finds inconvenient to its purposes. And I don't think the left can honestly deny this any more. (Note well: I said "honestly deny"!)

What else can it be called when the Court not only does so but admits to it in the persons of Justices Breyer and O'Connor? Both of them have been on sundry television programs explaining their respective justifications for resorting to a buffet of international law ("instructive", Breyer informs us, but not "binding" -- how reassuring, until one considers the fact that once it ends up in one of his opinions it becomes binding).

If memory serves, it was the Hamdan decision in which the Court ignored the fact that it's jurisdiction had been removed by an act of Congress. (Justice Stevens' reasoning -- in which we learn, among other things, that despite claims made by many regarding the impossibility of discerning legislative intent, a certain "negative inference" can be made, etc, etc, etc -- made for some peaceful bedtime reading.)

Now the Court, if the CJ is to be believed, fabricates new rules about standing.

My concern is not rooted in notions of some "edenic" era when the Court was populated by angelic beings. My concern is philosophical, jurisprudential to be precise. (I don't mean 'jurisprudential' as the term applies to case law. I mean it as a synonymn for 'legal philosophy.')

If the Court, which supposedly is to protect our liberties, can unilaterally alter the definitions of operative terms in the body of laws it is called upon to apply (the "living, breathing document" doctrine); if the Court can ignore limitations on its jurisdiction, placed upon it by that branch of government Constitutionally authorized to do so; if the Court can apply laws against us which are "foreign to our constitution,...unacknowledged by our laws" (Declaration of Independence, para. 15); if the Court can give petitioners standing who had none previously; if we are to be a nation of laws, in which our rights are to be protected by law -- then there is de facto no law which protects our rights. And we have no rights which, like any other provision of any other law, the Court cannot ignore. (For example, if the Court can fabricate new rules about standing, then the Court, in addition to creating standing, can also dissolve it.)

It sounds alarmist to make that claim, absurd even. But I am not talking about a future day on which the Court will announce that, as a matter of law, U. S. citizens have no right. On the other hand it is not unreasonable to inquire into the logical implications of the Court's decisions, and the reasoning which leads to, and justifies, those decisions. And when we look into some of the reasoning we find that proposition nevertheless to be logically (though not legally) implied by much of the Court's output, and by much of what certain members of the Court say in their opinions, and in some of their lectures and speeches.

And the fact that it strikes us as absurd (i.e., to assert that we have no rights) ought to clue us in to how much of what the Court does, and says, is illegitimate. And we ought to derive little comfort from the probability that the Court will avoid coming to actual grips with the implication I'm talking about.

The implication is there. And I'm certainly not the first to notice.

Incidentally, in contrast with the majority, who found judicial action warranted, the CJ wrote:

Global warming may be a "crisis," even "the most pressing environmental problem of our time." Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change. (Emphases mine.)

NOTE: On those occasions when I blog on the law, or the courts, I do not do so as a legal professional. I used to want to be a lawyer, but I got over that sooner than I got over wanting to be a Jesuit brother. I blog on the law and the courts as one who thinks it wise to pay as much attention to the most dangerous branch of our not-so-federal government as we pay to the other two. It is a lawyer's privilege to practice law; it's my right to watch how he does it after he puts on that black dress.

Labels: Government, Jurisprudence, Society

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