Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic

[G_j]

http://writ.news.findlaw.com/lazarus/20080717.html

What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic
By EDWARD LAZARUS
Thursday, Jul. 17, 2008

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A Pattern of Elitism That Spans A Number of Areas of Law

A walk through the Court’s rulings in a variety of areas of law shows the pattern:

Who decides whether an alien detained at Guantanamo can be classified as an “enemy combatant” – the Executive Branch under a specific grant of authority from Congress (with minimal judicial oversight), or the federal courts through the traditional avenue of habeas corpus? According to this Court, the answer is the federal courts.

Who decides whether the death penalty for child rapists is so disproportionate as to be unconstitutional as an instance of cruel and unusual punishment – state legislatures, including the six who have imposed such a penalty, or the Supreme Court, making its own independent moral judgment? According to this Court, this Court decides.

If the Food and Drug Administration has approved a medical device, can the device-maker be held liable under state tort laws protecting consumer safety? According to this Court, the federal agency’s decision nullifies the state tort laws.

How much discretion do juries have to exact punishment for monumental damages caused by monumental companies in a maritime context? According to this Court, the jury’s authority to punish cannot exceed the amount of compensatory damages, even if that amount will not cause much economic pain to the company involved.

In electing state court judges, can the respective political parties choose their competing candidates through a system that gives overwhelming control to the party bosses, or must the processes be more open and democratic? According to this Court, in New York State Board of Elections v. Lopez-Torres, the parties and their bosses can control the process.

Can a state condition the right to vote on the ability of a voter to present a government-issued photo identification? In Crawford v. Marion County Election Board, the Court okayed this restriction on the right to vote, despite claims of discrimination against the poor and elderly.

This Term Indicates the Court May Be Averse to Populist Decision-making

Without wanting to overstate the point, there is a zeitgeist to these decisions. They reflect a Court instinctively averse to having policy made through the unpredictable populist vehicles of litigation and juries, unconcerned about enhancing small-d democracy, and loath to permit exercises of governmental power without the check of judicial review.

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[ladjf]

1. The only way to deal with that is to elect a Dem in November.