Wednesday, July 14, 2010

Democracy Works Despite Us

Yglesias links to a fairly standard report on American ignorance. 2/3 of Americans can't name even one member of the Supreme Court. Somehow our republic (we're not technically a democracy*) functions anyway. After all, we're a republic in part because the Founding Fathers bet we wouldn't keep track of such things, so they turned approving Supreme Court nominees over to Senators who were originally appointed by governors. Three degrees of separation built in. Well, economic progress does come from specialization, right?

Anyway, only 1% of Americans can name all 9. Can you?

I managed 7. One of the two I missed has been on the court for 16 years and is the least-recognized justice. I don't feel so bad being part of 97%.

What worries me a little more is that THE decision Justice was the second-least known. Below the fold, allow me as a public service to introduce to you one of the least-known, most-important justices on the bench today
Anthony Kennedy
Appointed by Reagan in 88, Kennedy is really important because he is #5 in any 5-4 decision (since 2005 anyway, though he dislikes the title "swing vote"). On one side you tend to have Chief Justice Roberts, Thomas (the most recognized Justice), Scalia, and Alito; on the other Ginsburg, Sotomayor, Breyer (the least remembered), and Stevens (the other guy I forgot). Kennedy decides which faction gets their day on any controversial subject.

He isn't related to JFK, but he's still got a last name that should be easy to remember. He got his undergraduate in poli sci and spent a year at the London School of Economics before his law degree from Harvard. He assisted Governor Reagan in crafting a tax proposal. Gov. Reagan recommended him to Pres. Ford who appointed him to the federal court for a decade until Pres. Reagan could nominate him to the Supreme Court after two other failed attempts (Bork was one). He was voted in 97-0 by a Democrat controlled Congress.

"According to legal writer Jeffrey Toobin, starting in 2003, Kennedy also became a leading proponent of the use of foreign and international law as an aid to interpreting the United States Constitution.[32] Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues." He is still an active faculty member in the US and teaches in Salzburg, Austria during the summers.

Some memorable quotes:
Indifference to personal liberty is but the precursor of the state's hostility to it.

One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. ... [A state's] right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.

The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

We must never lose sight of the fact that the law has a moral foundation, and we must never fail to ask ourselves not only what the law is, but what the law should be. 
He turns 74 in 10 days.
* - More than half misidentified the system of government established in the Constitution as a direct democracy, rather than a republic-a question that must be answered correctly by immigrants qualifying for U.S. citizenship.

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