Eugster Law & Comment

Justice Scalia is critical of the New York Times regarding the Riegel v. Medtronics.  He says the paper does not pay attention to the essence of the case and instead reports it as expression of political power. 

An interesting criticism but the issue is really this — is the Court a political body or something else? We like to think it is something else.  But is it? What sort of decisions does it render?  What sort of expression does the Court engage in?  What was Roe v. Wade?  Was that case a decision about the law, or was that an expression of opinion?  What was the Gore Non-Election Decision?  Was it a decision based upon the law or was it political expression?

And, what about the cases the court accepts?  What about the cases the court rejects?  Are these decisions based upon law or something else?

Most people say the courts and judges are deserving of respect.  But when you seek to know more, the “respect” is due to the notion of the judge’s power, the judge’s power to allocate power, to act mostly unrestrained on the bases of his or her own predilections or emotions.  They do not believe judges act on the rule of law.  For most law is a gamble.  The respect they accord the court and its judges is due mostly to the inherent propensity all of us have of fear of that which has power over us, or we perceive as having power over us.  We cannot not countenance that those in power may well be opposed to us or some of us.

Justice Scalia’s comments are interesting.  However, however, the problem is a bit more complicated than he makes out.  Maybe the courts and the judges of the courts have to reach for a higher standard.  That is, maybe the courts and the judges should truly start to fashion all decisions based upon reason and law, including decisions to accept or reject petitions for writs of certioari.