Links for 4/14/10

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1. Barzelay says:
   April 14, 2010 at 2:13 am

   Radley’s essay on Stevens is clearly that of a non-lawyer. Uncharacteristically, he in fact seems not to understand appellate decisions at all based on that essay. Most of the examples he cites take the form “In X v. Y, Stevens voted with the majority to uphold the government’s ability to do A, or to prohibit a citizen’s ability to do B.” But it is quite seldom that the legal decision in such a case actually turns on the marquee issue.

   Radley seems to think that Supreme Court votes are like jury nullification: if you don’t like the law, vote to acquit whether or not he’s guilty. But the Supreme Court doesn’t work that way. It is required to constrain its power in numerous ways: it must be judicial, rather than legislative, and must respect the division of government in other ways; it must only rule on “cases and controversies;” its decisions must stand on precedent… So when Stevens votes not to overturn a decision punishing a citizen for growing marijuana for medical reasons, it doesn’t necessarily mean Stevens doesn’t support medical marijuana, or isn’t a champion of medical marijuana. It’s more likely that the particular law that was violated just could not be held unconstitutional on any grounds relevant to that particular case and supported by precedent. The fact is that that is an issue that SHOULD be left up to the legislative branch. When Stevens fails to overturn the legislative branch on a proper legislative issue, he IS constraining the government’s (specifically, the judicial branch’s) power.

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