Judge William H. Pryor, Jr., of the Eleventh Circuit, had an interesting op-ed in yesterday’s Wall Street Journal, in which he took issue with various “leaders of the bench and bar [who] have decried what they describe as unprecedented threats to the independence of the judiciary.” It’s a fun little piece, largely because the position Judge Pryor critiques is accepted in many quarters as a truism.
From the perspective of Article III groupies, however, this might be the best paragraph in the whole thing. It is, in essence, a concise collection of notable benchslaps — which Judge Pryor marshals in support of the proposition that recent critiques of the judiciary may not be as harsh as they seem.
Many contemporary criticisms of judicial decisions by politicians are no more heated than the criticisms written by jurists in dissenting opinions. In Roper v. Simmons, Justice O’Connor protested that “the Court [had] preempt[ed] the democratic debate through which genuine consensus might develop.” Justice Breyer warned, in what he called the “highly politicized matter” of Bush v. Gore, that “the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself.” Consider also the harsh words of Justice William Brennan in Oregon v. Elstad: “the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities . . . that have led nearly every lower court to reject its simplistic reasoning.”
Good stuff. But we must point out a notable omission: Why no Nino?
‘Neither Force Nor Will, But Merely Judgment’ [Wall Street Journal via How Appealing]
Judge Pryor’s Op-ed in Today’s WSJ [Southern Appeal]