Sunday, February 28th, 2016...5:11 pm
Irons Chapters 36-38, Afterword
These chapters discussed Supreme Court activity from the early nineties through the time the book was written. During this period the Court issued decisions on cases involving prayer in school, sodomy laws, wartime habeas corpus rights, and affirmative action. This period also saw the Court vote to halt the recount in Florida after the 2000 election, thereby putting George W. Bush in the White House.
One interesting issue discussed in these chapters was Scalia’s claim that the Supreme Court had behaved inappropriately in striking down Colorado’s Amendment 2 in the Romer decision. Scalia accused the Court of participating in a “culture war,” rather than simply interpreting the Constitution; he seemed to imply that judicial activism surrounding cultural issues was more improper than judicial activism surrounding plainly political ones. This claim raised two questions in my mind. First, is there any real distinction between cultural and political issues when legislation, like Colorado’s Amendment 2, is passed in response to changing cultural trends? Second, is it actually possible for any Supreme Court decision to abstain from “culture war” when the Court itself is a product of the cultural status quo? I’m curious to see what the class has to say about these questions.
1 Comment
February 29th, 2016 at 3:46 am
Great questions around the Amendment 2 decision! I think it is easy for a Justice to claim the court is interfering where they shouldn’t when it comes to a case and/or issue they don’t want to hear, while simultaneously making “cultural” court decisions when they think things will go in their favor. In response to your second question, I don’t think the Supreme Court can “abstain” from changing cultural trends. In my mind, law and culture are inevitably intertwined and will always interface with each other. This can be to both good and bad ends — such as using cultural trends to see shifts toward acceptance and changing the law to match, and using cultural trends towards discrimination and hatred to make laws that mirror such (as with indigenous Americans).
Finally, I love your point that Amendment 2 itself was passed in response to cultural trends, they just happen to be cultural trends that Scalia favored.