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Supreme Court Hearings: Law vs. Rights

by Christopher Chantrill
January 08, 2006 at 9:10 am


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 www.roadtothemiddleclass.com.

Buy his Road to the Middle Class.

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presented by Christopher Chantrill

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