The incoherence of the incoherence

The liberal media are at it again. Yesterday the New York Times published a hastily written and poorly reasoned op-ed from Ann Althouse, a blogger and law professor at the University of Wisconsin. For a substantial legal analysis of this piece, go see Glenn Greenwald. We’ll limit ourselves to a brief analysis of an otherwise embarrassingly incoherent piece.

Althouse writes:

>. . . [W]e ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

>This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

We’re not legal scholars, so it is doubly ironic that we find Professor Althouse’s argument ludicrous, for she has given the reader every argument *against* her position. It is, as any citizen ought to know, the job of the judiciary to interpret the law. And that is precisely what is at issue in this particular case. Judge Taylor–the one who decided *ACLU vs. NSA*–stands on solid constitutional ground. Althouse offers no argument that the law was not interepreted properly beyond the tired ad hominem cliche’ of “judicial activism”. (And in this case, as others have already noted, this cliche’ is irrelevant):

>But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome *in her heart* she knew was right. [emphasis added]

The legal questions, as Althouse has pointed out, are blindingly simple. Now if somehow Taylor’s argument was inadequate vis a’ vis the government’s briefs in this case (see Greenwald again for this), then it is Althouse’s duty to show this. Simply screaming “judicial activism” won’t due.

2 thoughts on “The incoherence of the incoherence”

  1. there was comment on Greenwald’s blog by “Spoken Moderate” that deserves repeating here: Judge Taylor simply upheld a law and certain long-standing legal statutes; conversely, it was the NSA who sought a decision that would rightly be labeled “activism,” for it sought a ruling that would fly in face of the law, crumbling these statutes and upsetting the course of checks and balances.

    for myself, whenever i hear persons such as althouse begin to bleat about “judicial activism” i begin to think they only mean to disguise their own attempts to radicalize the course of jurisprudence in this country. it’s like calling someone a racist in a sense; once you’ve been called a racist it seems pedantic to retort the same to your accuser, though it might be true. in the same manner, once the Althouse school of legalese has branded a certain groups as “judicial activists” they have rendered themselves immune to any accusation of the same, at least in a rhetorical sense. it seems that the Times is in such a headlong rush to shed the labael of paragon of the liberal media that they allow logical fumbles such as Prof. Althouse’s piece to soil their pages.

  2. That’s right Phil. So often does one hear the charge “judicial activism” from the right that I’m thinking of including it as a special variation of the ad hominem charge (for attacking the judge’s motivation rather than the content of the legal opinion). Perhaps tomorrow I’ll write something about this.

Comments are closed.