At First Things, in the course of hyperventilating over two recent court rulings (in India and New Zealand) that grant legal rights to natural objects such as rivers, Wesley Smith asks "should secular law inscribe distinctly religious beliefs into a nation’s statutes and secular court rulings? 1 Imagine the hue and cry if the Host in Catholic Communion were legally recognized as the body and blood of Christ. The screaming would break decibel machines!"
Smith may be right; on the other hand, our legal system recognizes something called "the seal of the confessional" as a legitimate reason for Catholic priests not to reveal information about crimes past, present, or future. To my knowledge, no decibel machines have yet been broken over this, except on the rare occasion when some court dares hint at compelling priestly testimony--and then the screaming comes from people like Wesley Smith who are outraged about violations of "religious liberty".
On the actual legal issue in question, vis a vis rivers, Smith waxes wroth:
In the latest phase of this descent into metaphysical madness, two rivers have been declared to be legal “persons” endowed with human-style rights. In New Zealand, the Whanganui River was granted the same legal rights as a human being. The reason? The Maori tribe considers the river sacred and an “ancestor.” Religion was also why an Indian court declared the Ganges River, considered sacred in the Hindu faith, to be a “person.”
Sacred rivers, sacred mountains, sacred lands: personally, I see nothing wrong with protecting such places, and if the only way to do that is to declare them to be "legal persons," so be it. If we can legally baptize corporations--i.e. piles of money--as if they were human beings ("Corporations are people, my friend!" chortled Mitt Romney, not recognizing that he'd borrowed a meme from the movie Soylent Green), then I don't see why the Ganges, the Whanganui, the Nile, the Jordan, the Amazon, the Rhine, the Tiber, the Thames, the Seine, and the Mississippi (to name a few) shouldn't get equal treatment. They've all been around longer than any of us and they'll all be around long after we're gone: so long, that is, as someone looks out for their interests.
1 Does Wesley Smith have in mind "religious beliefs" like prohibitions against abortion? No, I'm pretty sure he does not.
Matt Stoller (at The Baffler) is no fan of SCOTUS, at least when it comes to the court's rulings on economic issues:
Since long before Citizens United or Bush v. Gore, the Supreme Court has been a disaster for democracy. The influence of Robert Bork and the Chicago School of libertarians has been undermining the rights of Americans in the economic and political arena since the late 1970s. In 1978, the court effectively struck down state usury limits with the Marquette decision, leading to the modern credit card industry and a massive spike in personal bankruptcies. To understand how fundamentally counter-democratic the impact of this decision was, consider that a usury limit was actually one of the first laws that many states passed when they formed themselves as states. In one fell swoop, the high court overturned the democratic underpinnings of the American political economy...The result of the court’s rulings on the concentration of economic power since the late 1970s is a corporate cartelization of financial power unrivaled since the robber baron era.
Stoller says that the problem is not one of partisanship on the court: "when it comes to the legal ratification of political-economic power," he writes, "it often doesn’t matter whether a justice was nominated by the Democrats or the Republicans." Stoller identifies liberal justices Ruth Bader Ginsburg and Steven Breyer as "acolytes of extreme conservative jurist [Robert] Bork on antitrust [issues]," a charge which is disheartening, if accurate.
Desperate times call for desperate measures; faced with the prospect of Neil Gorsuch being named to the Supreme Court, Matt Stoller thinks that time is here. He offers this fusillade of suggestions for curbing SCOTUS:
It’s time for citizens to demand that Congress stop kow-towing to the legal establishment club and use their own power to reshape the Supreme Court to serve American democracy. Nothing in the Constitution prevents our making the Supreme Court a panel of a hundred judges, so that offending one wouldn’t be a big deal. Nothing prevents forcing the sitting judges to ride circuit all over the country, so that a Samuel Alito or Clarence Thomas couldn’t just sit in D.C. and radiate power outward to parts of the country they never see. Nothing prevents Congress from putting televisions in the court, so that Americans can watch the people who are making crucial decisions that affect—and curtail—their rights. Nothing prevents Congress from investigating the judicial junkets that the justices now soak up, such as the luxury hunting trip funded by wealthy interests that Scalia was savoring when he died. Nothing prevents the executive branch from indicting Clarence Thomas for taking a half a million dollars in bribes undisclosed through his wife’s relationship with right-wing think tanks (yes, he did this, and yes, the Obama administration did nothing about it). Nothing prevents Congress from simply limiting the jurisdiction of the court, and exempting key laws from judicial review should the court thwart the obvious needs of a democratic society.
That, it must be admitted, is quite an agenda; and you thought that conservatives were the ones whipping up animosity against the courts?
Stoller does add this caveat: "None of this," he cautions, "should be done lightly. Congress needs to make a case, a very public one, that the court is standing against the needs of our democracy, before embarking on the reformist options embedded in the Constitution."
In the end, however, Stoller believes that the notion of judicial independence is but a fiction and that Supreme Court justices (Stoller doesn't weigh in on judges in general) are but politicians in black robes:
But fundamentally, Congress needs to recognize that the Supreme Court is a political institution and is shaped by politics. If Senate Majority Leader Mitch McConnell is willing to subvert norms to seize power on the court, the strategy can’t be to wait forty years until [Neil]Gorsuch is gone. It must be to reclaim the court for American democracy. And that means understanding that the court is actually susceptible to public opinion. The justices are at the end of the day simply politicians, and the Constitution is a very flexible document.
Of course, if justices are politicians, then they should be elected rather than appointed, an idea that has made Charlie Pierce's list of "the worst ideas in American politics" (Pierce considers a "balanced-budget" amendment to be the absolute worst). I'm not sure that Neil Gorsuch, or the Roberts Court in general, or the corporate-friendly rulings of Ginsburg and Breyer, are worth abandoning our belief (naive as it may be) that courts can sometimes rise above narrow partisan interests to actually safeguard our liberties; and given the tenor of politics these days, I'd hate to see the judiciary thrown into the fray.