Tuesday, March 29, 2005

So in the things that don't happen to me every day category, I got yelled at today by a Michigan Supreme Court justice. OK, maybe I should back up a bit.

There was a forum today sponsored by The Federalist Society at the law school, inviting two of the state supreme court justices in to talk about federalist interpretation in action. For those who don't know, federalists are a group that largely but not wholly overlap with Republicans around law schools--they are strict constructionists, original-intent and literal-text-minded when it comes to interpretation, and are by-and-large libertarian in bent. It also happens that several of my best friends at school are federalists; go figure.

The forum sounded interesting, and I was assured that they were serving decent pizza, so I went. As is typical, I couldn't sit on my hands the whole time and had to pipe up. It should be said that, while my question was no less hostile than many of the other ones asked, it was a perfectly legitimate, pertinent question and was asked with a lot more civility than most of the questions posed. (The Federalist Society president could vouch for me in comments on this point, if she so chooses.)

Anyway the two justices started with an intro presenting their description of their judicial philosophy, and then the questions came. Oh, also, in the course of describing places where judges should have taken more limited positions, the examples cited were Roe v. Wade, assisted suicide, and gay marriage--shockingly (shocked!), all socially liberal agenda action items of the past 35 years. That justice also talked repeatedly about how judges aren't philosopher-kings and shouldn't act like they are.

I think they thought they were just talking to Federalists, when in actuality the whole law school was invited, and the people asking the questions were by and large not members. I raised my hand at an opportune moment, as one of the justices was looking for a way to cut off an unproductive dia(logue/tribe), and he called on me. I prefaced by contextualizing my question in terms of their stated anti-judicial activism philosophy, at which point I got yelled at for putting words in the justice's mouth. Apparently, repeating back the very words he had used to describe his philosophy 10 minutes earlier put words in his mouth; however, I let him finish, and then piped up:

"OK, so my actual question is this: Are you equally concerned with law-and-economics judicial activism as you are with social activism?"

Some more context: law-and-economics is a movement in law (especially, but not exclusively, torts and contracts) to base decisions on forward-looking policy considerations, internalizing externalities, placing burdens on lowest-cost-avoiders, and generally making legal decisions based on "economic rationality" rather than backward-looking, fuzzy notions of justice or fairness. Like most doctrines, sometimes it has its uses, and sometimes it's crap. Its chief proponent is 7th-Circuit judge Richard Posner (and his colleague the Official Brother of TMQ). One thing it certainly does not have on its side, though, is longstanding traditional or textual basis in the common law and the Constitution. It's the best example of judges just making shit up based on what they think about the world works or ought to work, and as such, it's way more activist than the "activist judges" conservatives love to rail against.

Anyway, the angry justice gave me a non-answer that basically said none of us except maybe Posner are qualified enough in economics to make sensible determinations about all this stuff (apparently Posner is qualified for philosopher-king; who knew?) but not in any way, shape or form really answering the question. The other justice said it was an excellent question (hey, who am I to argue with a Michigan Supreme Court justice!) and that the real test of their judicial philosophy would come if a Democrat-majority legislature passed a lot of bills they didn't personally like, and whether they adhered to their limited judicial role philosophy and gave the legislature wide berth. She said she believes they would. I believe her that she would; I can't say I felt so confident about her colleagues.

So that was my brush with the Michigan Supreme Court. I don't think I made an ass out of myself, I made my point, I asked the question that I've wanted to hear answered for a while, and I got a second straight entry about federalism into the blog.

I promise to return to something more along the lines of fart humor or at least dumb running jokes next time.

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