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Tuesday, April 27, 2010

Why is it that so many "scholars," particularly legal scholars, ignore the obvious?

The author of this post:
http://opinionator.blogs.nytimes.com/2010/04/23/american-judicial-idol/

proposes that the Supreme Court should not sign opinions, all opinions should be per curium, etc., to end the "cult of celebrity" associated with the Supreme Court.
This is me, playing the world's smallest violin, for those schmucks upset about the "cult of celebrity" of Supreme Court justices. And this is why I think... no, I know... that her arguments for changing the Supreme Court are without merit. I posted this on Above the Law earlier today:

As a guest mentioned yesterday, we live in a common law jurisdiction, not a civil law jurisdiction. ALL of the other countries mentioned, where there are only per curium opinions, unsigned, no dissenters, are all civil law countries. For those of you who never took a comparative law course in law school (or a history course in high school - these comments, and the original article from Ms. Greenhouse, are proof that public education needs some serious work) application of a civil code requires a very different role for judges. Rather than "interpreting" the law, it is the job of the lawyers to explain to the judges the interpretation of the law, and then only if the language of the code is unclear. The judges apply the code. Also, in every single case, the code and the words of the code trump judicial decisions. There is no "precedent" in civil law. So, what is important is the decision, because it applies the code, but the judge who applied it did not make "new" law or change it. If there are too many inconsistent decisions, the code is changed. Here in Louisiana, they change the code all the time. The code, however, is NOT a constitution, and is not meant to be applied as such. Civil Law countries also have Constitutions, like we do, and neither the Code, other statutes, or application thereof, are allowed to conflict with a particular jurisdiction's constitution.
In sum, making the changes in this article is the first step in abandoning our judicial system, which has had an awful lot to do with the shaping of our culture, and particularly our evolving individual rights.

It is true, Miss Greenhouse, that "the toxic confirmation battle in selecting Supreme Court justices is a truly American experience. So? America remains the greatest country on the planet, and it is because of the particularities of our history that we remain the greatest country. People, stop trying to screw this up. I'm no conservative, and I don't really like the decisions coming out of the Court now, either, but come on. If our judges were like those of France or Italy, America there would have been even more impediment toward the establishment of our now-protected liberties that we hold so dear, like the fact that you can vote. So, stop confusing people with a selective view of reality, and no look to history.

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