«Governing and Deciding Who Governs»

Josh Chafetz
«Governing and Deciding Who Governs»
The University of Chicago Legal Forum, vol. 2015

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Extracto del apartado en páginas 110-111 del artículo en PDF. Véase el texto en esta ubicación original para leer sus notas y referencias.

«One can certainly understand why the justices are so invested in denying that they govern. If it were to be admitted, then they would have to face questions about their warrant for doing so. The warrant for members of Congress and the president is that they were elected within the last two, four, or six years, and if they wish to keep serving, they will have to face the discipline of the ballot box again soon. But Justice Scalia was confirmed to the Supreme Court the week that Berlin's "Take My Breath Away" (the love theme written for the movie Top Gun) topped the pop charts, and he need never face any sort of democratic disciplining mechanism again. Given the "trend in government that has developed in recent centuries, called democracy," he and his colleagues may well be wary of inquiry into the warrant by which they govern.

»The justices' rhetoric well serves that wariness. Their selfpresentation- their "we"-makes them out to be wholly different from elected politicians. Where politicians are transient and fickle, "we" are stable and eternal; where they are grasping and voracious, "we" are passive and contemplative; and where they are headstrong and foolish, "we" are mature and wise. The Court thereby stands apart, but also above, as by holding judges to a higher, more pristine conception of corruption than it applies to elected politicians. In case that is not rhetorical distance enough, the justices also more pointedly claim that they do not "govern." The government governs, and the Court is at pains to make clear that it is not the government.

»But, of course, by any reasonable understanding of the words, the courts both govern and play a crucial role in deciding who governs. Courts govern all the time, simply because that is what it is to make decisions that control the actions and interactions of others. But the nature of election law is such as to give governance in that field a recursive quality: Reagan picks judges who pick George W. Bush, who picks judges who pick the rules governing the elections of future pickers-of-judges. Of course, it is nowhere near that simple-many more actors are involved, and there are many more constraints on all of the actors involved. Governance is always shared, and it is never free-form. But it is no less governance for that.

»There are good reasons to have courts involved, to some degree, in the process of governance. But the extent of their role in governance can only sensibly be debated once we have acknowledged that they are, in fact, governing. Roberts' claim that "those who govern should be the last people to help decide who should govern" was a statement made in the service of judicial power: other institutions' motives, he was telling us, are suspect. Trust in the Court-the eternal, passive, wise, uncorrupt Court-to resolve these hard matters for you. Failure to see through these rhetorical distancing strategies tends towards passive acceptance of such claims. We ought to be more skeptical of our governors than that.»