Judges and the Culture War

In this somewhat hysterical piece on Slate, the author claims that because of the Terri Schiavo case, "The judiciary is fast becoming enemy No. 1 in the culture wars—and the side wearing the black robes is losing. The anguish over Mrs. Schiavo's nightmare is boosting a rising common culture of attacks on the independence and legitimacy of our courts."

Later in the article, the author cites Brown v. Board of Education, striking down laws banning interracial marriage in 1968, and striking down laws requiring Jehovah's Witnesses to recite the Pledge of Allegiance.

I have never heard of anything related to Jehovah's Witnesses, but there seems to be a big gap in all this pontificating -- Roe v Wade. To be perfectly honest, I don't have a side on pro-life/pro-choice. I think they both have good points and bad points. And while I know this has been argued to death in many fora, it is also clear to me why people would think that the US Constitution does not say anything, one way or another, on abortion. While this stands, the cause of stopping left-wing judges ruling the country by diktat will run on.

The article also talks about how the judiciary has angered the executive by limiting their ability to prosecute the War on Terror. I think that the judiciary, both in the US and abroad, has been shockingly simple minded when it comes to the this. The Geneva Convention are clear in both its language and logic: only lawful combatants get legal protection, so if you want protection, fight legally. Fighting legally saves civilian lives since it prohibits things like wearing civilian garb, mingling with civilians, hiding in places of worship, etc. If the terrorists choose to forgo legal protection for military advantage that's their decision, and that choice clearly places them outside the protection of courts. If you want to maximize lives saved in War, reducing the punishment for those who endanger (and therefore kill) innocent civilians is simply not the way to do it. The logic is not complicated, but I understand how the ick factor of detention without trial etc. strikes people as wrong, and judges need to balance ick with rationality. In this case they went with ick, and that result will be more civilian deaths.