Supreme Court Hearings Law Vs Rights - Road to the Middle Class

HERE WE GO again, as the Senate prepares to advise and consent upon the nomination of Samuel A. Alito for a seat on the United States Supreme Court. Four months ago John Roberts testified to the United States Senate Judiciary Committee about his understanding of the role of the judge. He said:

If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Every conservative heart fluttered in admiration. But it was already clear that the Democratic senators on the committee had a radically different idea of the role of the judge. What about rights, they asked? What about women’s rights, workers’ rights, minority rights? On which side would Roberts come down: employers or workers?

Senator Kennedy was worried about “the removal of existing barriers to full and fair lives for women, minorities and the disabled.” Senator Schumer insisted that “You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers’ rights, women’s rights and a host of other issues relevant to the most powerful lifetime post in the nation.”

On the one hand we have the notion of the judge as dispassionate arbiter, evenhandedly making decisions based on the facts and the law, and on the other hand we have the notion of the high court as a champion of the oppressed and the marginalized, guaranteeing their rights against a world of power.

It is clear that Sam Alito is a judge from the same school as Roberts. In Planned Parenthood v. Casey, Alito dissented against a 3rd Circuit decision striking down a Pennsylvania law requiring women seeking abortions to notify their spouses. He proposed applying Justice O’Connor’s tests for an “undue burden” on a woman seeking an abortion. In Bray vs. Marriott Hotels, he dissented “against pro-employee summary judgment standards that allowed claims to survive when a plaintiff could show minor inconsistencies or discrepancies in an employer’s adherence to internal procedures.” In both cases Alito argued for respecting existing precedent.

In other words, Alito follows the conservative notion that judges should judge according to the law and the facts against the Democrats’ “rights” argument that people are helpless victims that judges should protect from powerful authority.

What is going on here? Why are Republicans so hot on the rule of law and Democrats so hot on “rights?” We need a psychology to illuminate this problem.

But let us not use the developmental psychology of Erikson or Maslow. They are problematic for conservatives since they assume that the highest and best form of human is the “integrated” liberal. Instead let us apply the ideas of Clare Graves and his students Don Beck and Christopher Cowan. The core of their developmental psychology is four levels or stages. First there are “red” victims who experience life as pure impulsive egos, helplessly beset by powerful forces. Then there are purposeful “blues” who live a disciplined, optimistic life in accordance with One Truth or the rule of law. There are also “orange” creatives, businessmen and artists who believe that you can change the rules of life-as-a-game, the business game or the arts game. Then there are communitarian “greens” who believe in sharing and caring, and who believe that violence never solves anything.

No wonder the Democratic senators talk about rights. A green leadership cadre leading a party of angry, helpless red victims, they know their job: protecting their clients from the malevolent power of the Man.

There is, of course, a limit to the Democrats’ rights jurisprudence; it ends when it starts to benefit Republicans. Imagine that you ran a business reboring gun barrels, and wanted to expand your machine shop into an area of your property that had been classified as a wetland because it occasionally became inundated during winter rains. Imagine the U.S. Court of Appeals applying “summary judgment standards” because the state EPA had not adhered fully to its internal procedures in the permitting process. What should unelected judges care about the rights of Republicans, optimistic God-fearing “Honey, I’m home!” Pleasantville homeowners that go to work, follow the rules, obey the law, and raise their families?

When Democratic senators insist that Supreme Court nominees agree to defend our “rights”, they are really talking about defending the legacy of a century of progressive legislation. Imagine how they feel, these well-born Kennedys and Kerrys, as they watch their beloved federal government ruined by Republican movie actors, drunken frat boys, instructors from non-selective colleges, high-school wrestling coaches, and even pest exterminators.

Only the Supreme Court remains to hold back the tide of these rude Republican parvenus.

Christopher Chantrill blogs at americanmanifestobook.blogspot.com.

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Faith & Purpose

“When we began first to preach these things, the people appeared as awakened from the sleep of ages—they seemed to see for the first time that they were responsible beings...”
Finke, Stark, The Churching of America, 1776-1990

Mutual Aid

In 1911... at least nine million of the 12 million covered by national insurance were already members of voluntary sick pay schemes. A similar proportion were also eligible for medical care.
Green, Reinventing Civil Society

Education

“We have met with families in which for weeks together, not an article of sustenance but potatoes had been used; yet for every child the hard-earned sum was provided to send them to school.”
E. G. West, Education and the State

Living Under Law

Law being too tenuous to rely upon in [Ulster and the Scottish borderlands], people developed patterns of settling differences by personal fighting and family feuds.
Thomas Sowell, Conquests and Cultures

German Philosophy

The primary thing to keep in mind about German and Russian thought since 1800 is that it takes for granted that the Cartesian, Lockean or Humean scientific and philosophical conception of man and nature... has been shown by indisputable evidence to be inadequate.
F.S.C. Northrop, The Meeting of East and West

Knowledge

Inquiry does not start unless there is a problem... It is the problem and its characteristics revealed by analysis which guides one first to the relevant facts and then, once the relevant facts are known, to the relevant hypotheses.
F.S.C. Northrop, The Logic of the Sciences and the Humanities

Chappies

“But I saw a man yesterday who knows a fellow who had it from a chappie that said that Urquhart had been dipping himself a bit recklessly off the deep end.” —Freddy Arbuthnot
Dorothy L. Sayers, Strong Poison

Democratic Capitalism

I mean three systems in one: a predominantly market economy; a polity respectful of the rights of the individual to life, liberty, and the pursuit of happiness; and a system of cultural institutions moved by ideals of liberty and justice for all. In short, three dynamic and converging systems functioning as one: a democratic polity, an economy based on markets and incentives, and a moral-cultural system which is plural and, in the largest sense, liberal.
Michael Novak, The Spirit of Democratic Capitalism

Action

The incentive that impels a man to act is always some uneasiness... But to make a man act [he must have] the expectation that purposeful behavior has the power to remove or at least to alleviate the felt uneasiness.
Ludwig von Mises, Human Action

Churches

[In the] higher Christian churches... they saunter through the liturgy like Mohawks along a string of scaffolding who have long since forgotten their danger. If God were to blast such a service to bits, the congregation would be, I believe, genuinely shocked. But in the low churches you expect it every minute.
Annie Dillard, Holy the Firm

Conversion

“When we received Christ,” Phil added, “all of a sudden we now had a rule book to go by, and when we had problems the preacher was right there to give us the answers.”
James M. Ault, Jr., Spirit and Flesh

Living Law

The recognition and integration of extralegal property rights [in the Homestead Act] was a key element in the United States becoming the most important market economy and producer of capital in the world.
Hernando de Soto, The Mystery of Capital

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