358. Instant evolution's gonna get you

A few weeks ago, the comic strip Pearls Before Swine - written by a recovering lawyer, Stephen Pastis - featured Pig, Rat and Goat standing behind a table or wall or something, all looking the same way.  (In Peanuts,  the wall had stones and they rested their elbows on it, but then Schulz hadn't gone to law school.)

Pig says something like, "My goal in life is to leave every place a little bit better than when I arrived."  Rat says: "You already do that."  Pig (thrilled): "Really?"  Rat: "Every time you leave the room, I feel better."  Pig, feeling euphoric, leaves, and Rat says to Goat, "The best insults sound like compliments."

I thought of that when I read a recent opinion by Judge Stephen Reinhardt, the right wing agent provocateur on the Ninth Circuit, whose career has been devoted to making liberalism look ridiculous.  (See post 265.)  In an opinion this summer, Reinhardt wrote of his "highly imaginative and creative dissenting colleague". 

Just think how unfunny that Pearls Before Swine cartoon would had been if Rat's sarcasm had been as crude as that.  My point isn't just that Judge Reinhardt is less intellectually sophisticated than a cartoon rat.

No, I take that back.  That is my point. But I have other points, too.  In the absurd Pledge of Allegiance case, he wrote one of my favorite fatuities:

It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote...

This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends-when determining, for example, that which is “cruel and unusual,” ...  This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not - we must not - allow public sentiment or outcry to guide our decisions.

So how does a federal judge tell the difference between long term societal trends and immediate political pressures?  Easy-peasy: anything the judge likes is a long term trend, anything the judge dislikes is political pressure.  (And if it wasn't long term before, he can do his best to make it so.)

Reinhardt was forced to say that sometimes federal judges are supposed to bend to the will of the people, because (of course) his personal opposition to the death penalty makes him accept the ludicrous idea that judges are better equipped to discern the the evolving standards of decency that mark the progress of a maturing society'" than are members of that society itself.  (See post 354.) 

There are lots and lots of very good reasons to be opposed to the death penalty, but the contention that Supreme Court justices (of all people) are attuned to what the people really think isn't one of them.  Perhaps it's the best the justices can do, when faced with the unfortunate reality that the Constitution twice authorizes capital punishment (here and here).  

Anyway, now the justices are contemplating a motion for reconsideration in their Kennedy v. Louisiana case, which held that the death penalty for mere child rape, when the child didn't die, was contrary to the latest trends in evolution.  Turns out that Congress recently passed just such a law. 

That's what it means to practice criminal law: we deal with matters of the greatest importance by arguing about side-issues such as "national consensus" that are saved from meaninglessness only because they possess no existence at all.