Mark Levin Gripes

by TChris

Mark Levin gripes about the Supreme Court in this Newsweek interview. He argues that the Supreme Court is the “most powerful” branch of government and that its power is “unchecked.” In fact, the Supreme Court has the final word only when it interprets the Constitution. If the Court interprets or applies a statute in a way that Congress doesn’t like, Congress can (and frequently does) change the statute, effectively nullifying those Court decisions.

While complaning that the Court has usurped power from the states and from the federal legislature, Levin cites Justices Scalia and Thomas as his current heroes. It’s interesting that he didn’t mention Rehnquist, who led the mini-revolution in Commerce Clause jurisprudence, invalidating two pieces of federal legislation. Scalia and Thomas helped Rehnquist form the majority in those cases, but Levin fails to explain why he holds his heroes blameless for their own role in a supposed usurpation of federal legislative power.

As have many before him, Levin attacks the Court's Kelo decision, which permitted local governments to take private property for redevelopment. That decision, of course, expands (or at least does not restrict on constitutional grounds) state and local governmental power, essentially placing that power in the hands of elected representatives. It's hard to see how Kelo advances Levin's assertion that the Court undemocratically acts against legislative will.

Levin also grumbles that the Court “conferred due process rights on foreign enemy combatants.” In fact, it is the Constitution that confers due process rights on any individual who is deprived by the government of life, liberty, or property -- even when the government brands those individuals as “enemy combatants.” Levin apparently believes that “unchecked power” in the Executive Branch is fine. Judicial review of the constitutional limits of that power has existed since Marbury v. Madison; it isn't a recent creation of some "activist" set of justices. The Bush administration’s repeated abuses of executive power should remind us that judicial review is a necessary counterpoint to presidential authority.

Levin advises the president to ignore the Democrats in selecting his next nominee because, after all, they’re in the minority and are therefore powerless. The 49 percent whose votes were counted against Bush the second time (and the plurality who voted against him the first time) apparently deserve no consideration. This is the country’s Court, not the president’s Court.

More entertaining is Levin’s view that “the nature of the loyal opposition in the Senate has changed considerably over the decades. It’s far more shrill.” The shrillness of the “loyal opposition” to the president reached eardrum-shattering decibels before and during Clinton’s impeachment trial. It's about time that Democrats started to shout back.

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    Re: Mark Levin Gripes (none / 0) (#1)
    by cpinva on Sat Dec 17, 2005 at 01:03:21 PM EST
    interesting interview. i've not read mr. levin's book, but i would already take issue with one of it's main premises: that SCJ's, by not being elected, and having lifetime tenure, are unaccountable. as i've noted before, while not directly elected, they are indirectly elected: the person (president) who appoints them, and those who advise and consent (senate) are elected. one can, reasonably i think, assume that those parties do take into consideration the feelings of their constituents, when appt./advising/consenting, since their re-election may depend on it. the justices do not enjoy unfettered life tenure, it is subject to their "good behaviour". the question then becomes, what is "bad behaviour"? mr. levin also seems to suffer from that classic right-wing ill, revising history to suit their needs. the current radical right-wing are the descendents of those that claimed slavery was actually beneficial to the slaves, that masters would never ill treat them, because they had a vested financial interest in their good health and happiness. just change the dates.