Late Night Rambling

What’s a well-meaning libertarian supposed to think about Sandra Day O’Connor’s retirement and replacement?

First off, friends of small government aren’t exactly losing an ally in Sandy D. A story from this week’s Time explains why:


O’Connor’s aversion to drawing bright lines in Supreme Court decisions made her vulnerable to the argument that she forced constant changes in the law and guaranteed that nothing would ever be settled. “You had to go back to the court every time you wanted to change public policy,” says John Yoo, a former Deputy Attorney General under the current President Bush and now a law professor at the University of California, Berkeley. Instead of setting out broad principles that determined cases once and for all–and thus allowing Congress and state legislatures to move on–the incremental approach adopted by O’Connor forced litigants and legislative bodies to constantly go back to the court for their next set of orders. Yoo argues that made the high court a de facto chief administrator. “It sucked [decisions] away from the political process,” he says. “And that has the effect of concentrating power in the Supreme Court.”

In all fairness, maybe O’Connor’s nitpicking ways were (are?) necessary in an age when Congress and State Assemblies are unwilling to tackle polarizing issues like abortion, Federalism, etc. Then again, maybe she just liked playing boss.


O’Connor’s habitual hairsplitting is reflected in the Court’s recent decisions on Ten Commandments displays. It’s OK in this one small way; it’s not OK in some other. (Frankly, I don’t care, except to the extent that such judicial micromanagement is bad for the Republic. My advice to my fellow atheists is this: “Buck up, friend. We’re in the minority and always will be. If your skin is so thin as to be offended by a little tablet written by somebody else’s imaginary buddy, then you aren’t tough enough to be an atheist. Obviously, you’re in need of something bigger than you to rely on, but aren’t willing to join the mainstream. So go worship Pan or Wicca or some other marginal God/Goddess/Whatever.”)

Anyway – we were talking about the Supreme Court, so I’ll save my rants about my atheist, would-be comrades for another day.

I haven’t done all my reading on Bush’s likely nominees, but what little I’ve gleaned isn’t promising. Alberto Gonzales – apparently the mostly likely nominee – looks good at first, especially to a pro-choice/small-government advocate like myself. Then again, he’s no fan of the Second Amendment, as Bill Quick noted on Wednesday. Bush’s other potential nominees follow the same pattern: Good (but not great) on some issues, and terrible on others.


The good news is, the Supreme Court isn’t the end-all be-all of every issue ever.

Gun control? In my mind, it’s nearly a dead issue. Yes, states and localities might still pass stupid laws, and the Supremes might very well uphold them. But there’s a big difference between gun registration and gun confiscation. Americans have submitted to the former, but the latter quite simply won’t ever happen. There are too many gun owners with too many guns – and too many of us are very good shots.

Abortion? While I’m nearly as pro-choice as they come, I still think this is a state issue. Even though first-trimester abortions are legal everywhere, you still can’t get one just anywhere. And yet women who need or want one still get the nasty business done. If the Supremes were to knock down Roe v Wade, Utah might outlaw abortion, but California wouldn’t. Honestly, I’d give money to Planned Parenthood to provide transportation to Utah women to travel to California. We have 50 laboratories for democracy – let’s use them. And let’s not rely on the whims of the ever-changing Supreme Court to decide such a vital issue.

States’ rights? The Supreme Court has let us down here time and time again. Frankly, so have the States. In Olden Times, if you paid the Danegeld you’d never be rid of the Dane. In Modern Times, if you take then Danegeld, you’ll never be rid of the Dane. A few brave states have, now and then, on one issue or two, talked about states’ rights. The rest of the time they’ve taken Washington’s money and (sometimes, quietly) bitched about the strings. When the states get serious on this issue, then so will I.


So what’s the small-government enthusiast to realistically hope for? Someone better than O’Connor and not as bad as David Souter.

Question is: Does my small hope make me an optimist or a pessimist?


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