Front page Balkin. Sabeel Rahman sabeel. XML powered by 2. Atom Feed 3. RSS 2. Comments: As Finley Peter Dunne's creation noted around a hundred years ago, cleaning up the brogue, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns. The NYT recently had an article on how our elective judiciary state courts is an outlier among nations.
Well, the chart they supplied suggested even a legislatively confirmed judiciary like ours is fairly special. And, the result, with a time lag at times, is that the justices in a rough fashion reflects the electorate. Justice Scalia doesn't reflect the electorate, even if Republican presidents use him as a model.
Like it or not, a Kennedy does. A Roberts or Alito, conservative but only so far, might as well. I say "rough. But, if you don't want judges to roughly follow the election returns, don't let them greatly determine who gets the job. We had a number of more radical political change periods in our history such as the Jacksonian and Progressive periods, but the Court did not engage in wholesale rewriting of the Constitution until the New Deal, Warren and Burger courts.
This is a 20th Century leftist phenomenon. I took ConLaw in the fall of , pre-Warren Court. There had been for some years a recognition at the bar nationally that individual rights of criminal defendants were often given short shrift.
Considering what the Warren Court accomplished for individual rights criminal and otherwise , what might the practice of law look like today but for the Warren Court? For example, look at all the benefits accruing to defense counsel in DUI cases. Who remembers the old days of the police officer's testimony: "There was a strong odor of alcohol on the defendant's breath, he was unsteady on his feet, he slurred his words, and in my opinion he was drunk.
