Tuesday, May 11, 2010

Defense of Rights

I guess it’s not surprising that Chris Matthews doesn’t know how to be a liberal, given that many real live liberals don’t know how to be liberals. The sentiment that he expressed in a conversation with Ernest Istook of the Heritage Foundation regarding the Elena Kagan nomination, is one that is quite widely held; that the courts are supposed to “defend the rights of minorities” and “protect unpopular opinion.”

Istook: If you look at one of the few things that Ms. Kagan has written, she said that the role of the Supreme Court is to benefit the despised and the disadvantaged. Actually, the reason the statues of justice wear the blindfold is because they‘re not supposed to take sides on whether you‘re liked, disliked, whether you‘re advantaged or disadvantaged. That‘s all supposed to be disregarded. And statements like that certainly make her appear to be in the— cast in the mold of a very activist judge.

Matthews: Yes, I—maybe I agree with you, maybe not. It seems to me one place I do—I think you want to correct yourself, Congressman. The courts—the 1st Amendment is to protect unpopular opinion, right?

Istook: It‘s to protect all opinion.

Matthews: No, unpopular. Let‘s face it. You don‘t need...

Istook: Unpopular included.

Matthews: ... to protect popular. You don‘t need to say, I love apple pie—you don‘t need to protect it, or, I love the flag. You have to protect people who may burn the flag and do things you really, really hate seeing them do, right? Isn‘t that what the 1st Amendment‘s about?

Matthews: You‘re denying—let me ask you this. You don‘t think it‘s the job of the Supreme Court to protect the rights of minorities?

Istook: I think it‘s the right to protect—I think their job it to protect the rights of minorities, but that is not their sole job. The job is also to protect the rights of everyone.

I’m not sure I agree with Istook that she is “cast in the mold of a very activist judge,” but I very much agree with his concept of blind justice. Matthews keeps harping on the idea that the rights of majorities and popular causes do not need defending, and I think he has it all wrong. I believe that all rights and all causes need defending, whether they are popular, unpopular, minority or majority. I would argue that the Supreme Court should protect the rights of all people, equally, including minorities.

Kagan’s statement could actually be taken in a completely non-activist sense, in that a Supreme Court that treated all persons equally, one which truly leveled the playing field, would have the ultimate effect of “benefit [to] the despised and the disadvantaged” without any activism at all. Is that the way she meant it?

1 comment:

bruce said...

Their sole job is to interpret the law, without taking sides. Thus that should cover popular, unpopular (which is whimsical anyway), minority, majority, etc. To be sure, that often takes the effect of protecting /benefitting the oppressed (often interpreted as minorities). Of course, their rulings are often a product of the times (eg, the Dred Scott case). The public does not always agree with their interpretations of the law and the Constitution.

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