Tuesday, June 24, 2003

An update to my previous posting about anticipated reactions to the Supreme Court's recent affirmative action rulings:

Eugene Volokh has explained to me, via email, that he he considers Justice Ginsburg's position different from candidate Gephardt's, because Ginsburg only discussed others' (i.e., university administrators') potential disrespect for the Court's ruling, whereas Gephardt promised to undermine the ruling himself. That's a valid distinction, and certainly explains why Volokh spared Ginsburg the opprobrium he heaped on Gephardt.

But it doesn't explain why he was so easy on the university administrators whose contumacious behavior Ginsburg predicted (and plausibly, in Volokh's eyes). Indeed, Volokh also informed me by email that he does "think it's worse when a President publicly announces his intention to violate his oath than when lower-level decisionmakers break the law" (although he opposes both).

So there we have it: it's bad enough--though sometimes, regrettably, predictable--for a bureaucrat with no accountability to undermine the Supreme Court's authority. But if a president should get elected on a platform that includes a promise to undermine a Court ruling, and then attempt to live up to that promise--that would be really terrible.

In other countries, we sometimes see a populist president trying to dismantle the democratic process and install himself as absolute dictator. Venerable institutions like the judiciary might then intervene to preserve the sovereignty of the citizenry. In America, it seems, things work the other way around: politicians attempt to enhance respect for the people's will, and right-thinking legal minds scold them relentlessly for suggesting that an electoral mandate might entitle them to speak on major matters of public policy.

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