A Law Unto Herself.

[IntiRaymi]

A Law Unto Herself

By ANN ALTHOUSE
Published: August 23, 2006

Madison, Wis.

TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.”

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

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http://www.nytimes.com/2006/08/23/opinion/23althouse.html

Professor Althouse has a blog:

http://althouse.blogspot.com/

A cursory inspection of her views appear to paint her as another administration shill, along the lines of John Yoo. I haven't had the time to see this for myself, but go ahead, take a look.

[sui generis]

1. well but at some point the exercise of the balance of powers

requires the functional aspect of each branch to exercise their functional discipline. And for the judiciary that means interpreting the law when there is a question about the law and rendering an opinion.

So how then can she be "blithely ignoring" her own obligations and still deliver an opinion? The SCOTUS clearly isn't always right or even appropriate in their decisions. As an example, the opinion given upholding the results of the 2000 election in which the supreme court said that in no case should the opinion be used as precedent in any other similar proceeding . . . was shameful.

However in this case the judiciary isn't using the grant of war time powers and its overrides to permanently dismantle the protections of the constitution, so I don't really see how the judiciary apple and the presidential war-time powers orange happen to be on the same teleological tree as she seems to imply.

Shill - that about sums it up.

[patrice]

2. The judge doesn't use the word "Chief" in reference to Justice

Warren and we're supposed to take that as evidence that she is "blithely ignoring (her) own obligations"?

Just because anyone *can* decide ". . . what outcome they want, based on their own personal or ideological preferences, and then (write) a legalistic, neutral-sounding opinion to cover up what (sh/e has) done" doesn't mean that s/he *did*.

I'm sorry I can't log onto the NYT to see what **proof** Althouse has of what Judge Taylor's brain was doing when she delivered her decision.