Monday, April 12, 2010

Invasive bushes and politics . . .

Ever since I discovered Buddleia davidii, a.k.a. the butterfly bush, I've planted some wherever I lived. The blooms keep the butterflies happy all summer and the seeds keep the birds fed all winter.

But  then I noticed butterfly bushes springing up, willy-nilly, in the rose garden, the vegetable garden, the perennial beds, in the middle of the lawn -- all places where they were not wanted and, in fact, did harm to those plants that were wanted. Well, low-and-behold! Over lunch one day, I learned that Buddleia davidii has officially been named an invasive species. Once installed in a garden, they tend to take over.

This weekend, while cutting back my current stock of intended butterfly bushes (pictured left from some recent summer) and yanking up dozens of intruders, I found my self thinking about the retirement of Justice Stevens from the United States Supreme Court and what it means to our American system of government.

There have been many articles in many newspapers since Justice John Paul Stevens announced his retirement last Friday. But one in Friday's The New York Times struck me, personally, as perhaps the most telling. It begins this way:
WASHINGTON — Justice John Paul Stevens, who announced his resignation from the Supreme Court on Friday after 34 years, may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court.

Justice Stevens, a Republican appointed by Gerald Ford in 1975, has never been one to tout adherence to the supposed original meaning of the constitutional text. In a newly published, 1992 private memorandum to Justice Blackmun, Stevens expressed his thoughts on the subject this way. “Traditions — especially traditions in the law — are as likely to codify the preferences of those in power as they are to reflect necessity or proven wisdom.”

Yet Stevens retained respect for legal precedent, as pointed out in the same NYTimes article:
He grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that it violated the Eighth Amendment. But he went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”
Justice Stevens recently excoriated the majority of his colleagues over their decision to allow corporations to spend freely in elections, writing:
“Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
But it is, perhaps, his decenting opinion in Bush v, Gore, the 2000 decision that made George W. Bush our country's president that, for me, marks Justice Stevens grasp of today's American reality; that the steady invasion of politics into our legal system is undermining our system of government.
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In other words, in Justice Stevens opinion, even President Bush's supporters lost much, much more than they won through that particular Supreme Court decision.

I think it is remarkably telling that Justice Stevens' confirmation hearing was the last one not to be televised. It seems to me that our ability, as private citizens, to watch almost everything as it's happening has given a lot of us the mistaken impressions that we are well-informed and that our opinion should always be taken into account.

Most of us know nothing about Constitutional law, yet we energetically pressure Senators to confirm someone to the Supreme Court based on splinter political issues, rather than  the nominees actual "ability and independence." Without even a thought to the sad fact that, when we do this, we are actively working to undermine the health and strength of American Democracy.

Is it any wonder I found myself thinking about able and independent Justice Steven's retirement while yanking butterfly bushes out of the rose garden. Politics and Buddleia davidii are both invasive species. Unrestrained, they do great harm.

1 comment:

  1. Justice Stevens's remark -- that traditions in law are as likely to reflect the interests of those in power as they are to restrain the same powerful interests -- speaks to a feeling I've often had about the practice of law. It strikes me that legal reasoning can be used to justify any position or outcome if the one (judge or lawyer) refuses to acknowledge the human, and necessarily contextual, interests that guide its application.