387. Who decides?

The New York Times website this evening runs the same story three times, although nothing indicates that the reporters or editors understood it was the same story.  First, with a color photograph of a costumed man statistically likely to die young, is this headline: "Ruling May Blunt Sports’ Anti-Doping Plans."  Click on it and the verb mysteriously transforms to "weaken."  Most mysteriously of all, the Firefox tab uses the verb "undermine."

Michael S. Schmidt's first two paragraphs read:

A federal court ruling has jeopardized [and not blunted, weakened or undermined] the National Football League’s ability to enforce its drug-testing program and raised significant doubts about the programs of other professional sports in the United States. 

The ruling revealed a new door for athletes to challenge their doping suspensions: players in the N.F.L., Major League Baseball, the National Basketball Association and the National Hockey League may now turn to state courts, hampering the leagues’ abilities to discipline players.

Return to the start page and we find another, nearly-identical story with the headline: "A Free Speech Battle Arises From Videos of Fighting Dogs."  The headline is the same in all three iterations, presumably because it's so hard to come up with acceptable synonyms for "arise."  (BTW, is it true that the Times is the only paper that begins headlines with the indefinite article?)  Adam Liptak's article reports:

The next great First Amendment battle in the Supreme Court concerns, of all things, dogfight videos. ...

[Robert J.] Stevens, 69, had nothing to do with the dogfights themselves. But he did compile and sell tapes showing them, and that was enough to earn him a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Back to the start page.  The third version of the story, by David D. Kirkpatrick, has the headline "Court Backs Outside Groups’ Political Spending."  (The Firefox tab has the rather more descriptive "Ruling Broadens Financial Influence of Independent Groups During Elections," although the headline writer inexplicably left off the internal quotation marks around "independent") (but then, as Dogbert pointed out this morning, it's not a crime if it's not in writing, and "independent" groups can manage that pretty easily).  

The federal appeals court for the District of Columbia ruled Friday that the government cannot restrict independent political spending by nonprofit groups or political committees, accelerating the judicial rollback of regulations aimed at curtailing the power of money in politics.

As readers, our initial tendency is to react emotionally, which is to say against the result that most strikes us as moral or immoral, outrageous or just right.  The editors who topped the webpage with  football players using diuretics (diuretics??) were probably correct that it was the story most likely to produce a strong reaction, either despite its triviality or because its triviality makes it a cozily manageable subject for Jim Romish outrage.

Us lawyers tend to respond by trying to figure out the legal issues actually at stake (not always easy to do when reading newspaper accounts of legal proceedings) and deciding whether the judge(s) got it right.

But both responses begin at the letter M, so to speak.  They skip right over A through L, because before the judge(s) can get it right or screw it up, someone has to decide that the subject is something that should be decided by judges.

Saying the subject is one to be decided by judges is the same as saying either (a) it was already decided by the people, acting through their democratic branches of government, who enacted a law addressing it (that's what the football case is about), or (b) it's something that the people aren't allowed to decide (the other two cases).

Sometimes the judge(s) will make good decisions, other times not.  That's a given.  Sometimes the decision will be legally "correct" and sometimes not (which can mean either of two entirely different things: justified by pre-existing law or not reversed by a higher court).  Those are secondary concerns, just as "Who won the game?" is secondary to: "Who made the rules?"

"It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."  What restrains the power of judges from passing the limits assigned to it, assuming such limits exist?

Or, rather: Who decides what restrains it?