eudaemonia

Bryer and the judicial transcendentalists

What is required here is for a discussion of the nature and sources of Supreme Court’s authority as distinguished from exercise of a judicial-like power. Bryer argues as if this question is not relevant and Scalia touches upon it obliquely. Bryer’s position is that judicial power can be exercised to almost any extent so long as a justice tells everyone his/her reasons. Apparently if you’re a really good person and candid as to your motives you can reach almost any position. How this acts as a limitation or is even distinguishable from the despotic exercise of power is a question I lay aside for now. Scalia rightly questions how "candidness" acts as a limitation. He notes that decisions by legislative majorities that go so far, and no further, represent compromise and bargaining, and thus represent as much a part of the legislative will as the generalized “purpose” Bryer purpurts to divine. But what is painfully absent in Scalia’s rejoinder, is a discussion of why a judge is limited by a given statute’s purpose to begin with. In my opinion, this leaves these two Justices arguing past each other, and perhaps the failure to address authority is why this rather simple issue remains the point of so much contention.

The nature of our SC’s authority in our tripartite democratic republic is that it invokes a document adopted by the supreme sovereign will against statutes representing the will of temporary majorities. The institutional structure through which the temporary legislative will and judicial judgment is exercised is created and limited by the design of the document adopted by the supreme sovereign authority: the people. Therefore, and it follows very simply, the authority of the SC’s power to limit legislative will derives exclusively from its function of applying the letter of supreme law, The US Constitution, to statutes passed by legislative majorities. To the extent that a judge replaces his/her view in place of the constitutions text and structure, and irresistible inferences therefrom, then that judge is exercising judicial-like power but not authority. This isn’t rocket science.

posted by spelunker @ 3:53 PM