What Do We Do About Activist Judges?

[Squawker]

I don't see that there is a problem. I see the wonderful world of checks and balances.

That is unfortunate, but you are entitled to your opinion. Perhaps with age your perspective will change.

 

[shuamort]

That is unfortunate, but you are entitled to your opinion. Perhaps with age your perspective will change.

We're both entitled to our opinions and we both should be able to express them without personal attacks as well.

 

[Squawker]

We're both entitled to our opinions and we both should be able to express them without personal attacks as well.

I wasn't aware that I attacked you. Where do you see that?

 

[shuamort]

I wasn't aware that I attacked you. Where do you see that?

Here:

Perhaps with age your perspective will change.

It creates an assumptive thought that "you're not old enough to understand".

 

[Squawker]

It creates an assumptive thought that "you're not old enough to understand".

oic. That wasn't the intent. As you age you grow and learn, thus your values and ideals change depending on your circumstances. I was a Democrat until around 1993 or 5, so I was a slow learner.

 

[shuamort]

oic. That wasn't the intent. As you age you grow and learn, thus your values and ideals change depending on your circumstances. I was a Democrat until around 1993 or 5, so I was a slow learner.

Alright, no harm, no foul. I used to be a democrat myself, so I know of what you speak.

 

[Fantasea]

.

And onto his little statement about using international law when making their decisions. Whenever possible, the court, since international law existed...which is after the UN started up...so...not recent unlike what he said, has been used to help to justify their posistions. It is not the basis for their arguments, think of it more as a brace for the backbone, just helping to support it.

If the responsibility is to construe law in light of the US Constitution, from whence does the authority come to construe law in light of the laws of other countries?

 

[Fantasea]

>>In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said. <<

This is what gets me about the Supreme Court...."evolving notions of decency?"

Since when is our Constitution subject to the whims and fads of society?

I'm not arguing about the death penalty decision...just the fact that an idiot like Scalia actually believes the Constitution should forever evolve and change simply because society changes!

Evolving notions of decency? There is no such application when interpreting the Constitution.

I can't quite understand your analysis of the remarks of Justice Scalia. I believe you have written the opposite of what he said.

 

[ShamMol]

If the responsibility is to construe law in light of the US Constitution, from whence does the authority come to construe law in light of the laws of other countries?

you missed my point entirely. they do decide the case based on united states law, but they include findings in international law. why do they do this would be more correct of a question. and the answer to that is that there is an emerging global network of law that has been established and has grown since international law first really existed-league of nations. this emerging global force is the reason they include it, and it is not just the liberals on the court who do, scalia even cites them (though we all know he doesn't do it personally, he has his law clerks do it, lol). the fact is this...the main decision comes from the interpretation of the constitution, while supporting evidence never used as the main basis is sometimes from international law.

 

[Fantasea]

you missed my point entirely. they do decide the case based on united states law, but they include findings in international law. why do they do this would be more correct of a question. and the answer to that is that there is an emerging global network of law that has been established and has grown since international law first really existed-league of nations. this emerging global force is the reason they include it, and it is not just the liberals on the court who do, scalia even cites them (though we all know he doesn't do it personally, he has his law clerks do it, lol). the fact is this...the main decision comes from the interpretation of the constitution, while supporting evidence never used as the main basis is sometimes from international law.

Your point was crystal clear. And so is the duty of the Justices to construe law in light of the US Constitution.

Those in the legal profession use the expression, "slippery slope" when it suits them. I believe this niggling around with foreign law sets a very bad example and poises the US on that slippery slope which leads directly to conflict with the US Constitution.

I don't want any.

 

[ShamMol]

Your point was crystal clear. And so is the duty of the Justices to construe law in light of the US Constitution.

Those in the legal profession use the expression, "slippery slope" when it suits them. I believe this niggling around with foreign law sets a very bad example and poises the US on that slippery slope which leads directly to conflict with the US Constitution.

I don't want any.

What you want, to the court system is irrelevant. The practice of citing internation law dates back to before the Warren court. What my point was that in your words, they do "construe law in light of the US Constitution" but in addition to that, provide other places that do the same thing they are arguing. The slippery slope, to continue the...well, its become flat because it is done in almost every single court case and is now common practice.

Let's say there was an argument you were having with a friend over say...would you not use evidence that you could use just because it was say...in another state? In the emerging global economy and worldview, sometimes, and the court usually uses it, international law can be used to supplement a judgement, but at the same time using on the constitution as the main basis for their arguments.

 

[Fantasea]

What you want, to the court system is irrelevant. The practice of citing internation law dates back to before the Warren court. What my point was that in your words, they do "construe law in light of the US Constitution" but in addition to that, provide other places that do the same thing they are arguing. The slippery slope, to continue the...well, its become flat because it is done in almost every single court case and is now common practice.

The function of the court is to read the law that has been enacted by the elected representatives in the the various legislatures and to apply that law, and no other, to the to the matter at hand. Irrespective of the merit of the motives of the Justices, they are sworn to uphold the Constitution of the United States. This, in no way, includes 'seasoning' their decisions with the 'spice' of laws which have been enacted in foreigh nations.

Let's say there was an argument you were having with a friend over say...would you not use evidence that you could use just because it was say...in another state? In the emerging global economy and worldview, sometimes, and the court usually uses it, international law can be used to supplement a judgement, but at the same time using on the constitution as the main basis for their arguments.

Your hypothetical construct is just that, a hypothetical construct.

The point is quite simple. Unadulterated U.S. law for the U.S.

In an effort to ameliorate the conditions which have led to frequent wars as far back as one can trace, and to reduce economic tensions, the countries of the European continent have decided to emulate the United States of America and form their own "United States of Europe" which they have decided to name, The European Union.

It would seem that rather than our bending to the laws, customs, and the like, to those of the EU members, things should be the other way round. That is, unless, of course, you believe that the U.S. should be seeking membership in The European Union.

 

[ShamMol]

The function of the court is to read the law that has been enacted by the elected representatives in the the various legislatures and to apply that law, and no other, to the to the matter at hand. Irrespective of the merit of the motives of the Justices, they are sworn to uphold the Constitution of the United States. This, in no way, includes 'seasoning' their decisions with the 'spice' of laws which have been enacted in foreigh nations.Your hypothetical construct is just that, a hypothetical construct.

The point is quite simple. Unadulterated U.S. law for the U.S.

In an effort to ameliorate the conditions which have led to frequent wars as far back as one can trace, and to reduce economic tensions, the countries of the European continent have decided to emulate the United States of America and form their own "United States of Europe" which they have decided to name, The European Union.

It would seem that rather than our bending to the laws, customs, and the like, to those of the EU members, things should be the other way round. That is, unless, of course, you believe that the U.S. should be seeking membership in The European Union.

I actually do think that, but that is irrelevant at this point in time due to the current political climate of the United States. Can you say that the international law is the main basis for anything? no, you can't. if you want Unadulterated law, go back to the 1950s when it was a simpler time. but with today's global economy, the need to include internation law is important and thus will not be changed. the fact is that the courts do read the law. the fact is that the courts in the lower courts don't use internation law for the basis or even, to borrow your wording, season the decisions. they decide straight on the constitution. the supreme court on the other hand has more time to do decisions. what they do is simple. they decide first on the constitutionality of the law relating to the constitution and implied powers doctine, and then, and only then add in internation seasoning. it isn't hurting, so why do you think it is wrong.

 

[Fantasea]

Quote=ShamMO

Originally Posted by Fantasea
The function of the court is to read the law that has been enacted by the elected representatives in the the various legislatures and to apply that law, and no other, to the to the matter at hand. Irrespective of the merit of the motives of the Justices, they are sworn to uphold the Constitution of the United States. This, in no way, includes 'seasoning' their decisions with the 'spice' of laws which have been enacted in foreigh nations.Your hypothetical construct is just that, a hypothetical construct.

The point is quite simple. Unadulterated U.S. law for the U.S.

In an effort to ameliorate the conditions which have led to frequent wars as far back as one can trace, and to reduce economic tensions, the countries of the European continent have decided to emulate the United States of America and form their own "United States of Europe" which they have decided to name, The European Union.

It would seem that rather than our bending to the laws, customs, and the like, to those of the EU members, things should be the other way round. That is, unless, of course, you believe that the U.S. should be seeking membership in The European Union.

I actually do think that, but that is irrelevant at this point in time due to the current political climate of the United States. Can you say that the international law is the main basis for anything? no, you can't. if you want Unadulterated law, go back to the 1950s when it was a simpler time. but with today's global economy, the need to include internation law is important and thus will not be changed. the fact is that the courts do read the law. the fact is that the courts in the lower courts don't use internation law for the basis or even, to borrow your wording, season the decisions. they decide straight on the constitution. the supreme court on the other hand has more time to do decisions. what they do is simple. they decide first on the constitutionality of the law relating to the constitution and implied powers doctine, and then, and only then add in internation seasoning. it isn't hurting, so why do you think it is wrong.

You miss the point. Justices are appointed to do one thing and one thing only. That is to support, uphold, and defend the United States Constitution; to the exclusion of all others.

Justices are not appointed to bring their individual thoughts, wishes, and desires to the bench in order to fix, bend, or tweak laws that do not suit their individual philosophies. To do so would be a violation of the oath they swore. That is the complaint with 'activist' judges.

If there are Senators or US Representatives who believe that Justices should have the freedom to interpret things differently, they should introduce legislation to that effect and see where it goes. If their proposals become law, then so be it. Until then, Justices are bound to uphold existing law.

 

[ShamMol]

Quote=ShamMO
You miss the point. Justices are appointed to do one thing and one thing only. That is to support, uphold, and defend the United States Constitution; to the exclusion of all others.

Justices are not appointed to bring their individual thoughts, wishes, and desires to the bench in order to fix, bend, or tweak laws that do not suit their individual philosophies. To do so would be a violation of the oath they swore. That is the complaint with 'activist' judges.

If there are Senators or US Representatives who believe that Justices should have the freedom to interpret things differently, they should introduce legislation to that effect and see where it goes. If their proposals become law, then so be it. Until then, Justices are bound to uphold existing law.

i guess i don't have to say anything other than, they do. they uphold the existing law or rule it unconstitutional using the constitution as the main part of their argument.

 

[Squawker]

With every decision, comes a dissenting opinion. You seem to feel that because the majority of Judges ruled, they are always right. Isn’t the majority on the SC left leaning? The dissenting opinion in the ROPER V. SIMMONS case doesn’t agree with using international opinion as a basis to rule. If we allow that, then abortion should be illegal on the basis that most countries don’t sanction it. Our Judges pick and choose how to apply international law and opinion. That is activism and it isn’t right.

Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.
The Court begins by noting that “Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470, entered into force Sept. 2, 1990], which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” Ante, at 22 (emphasis added). The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at 13, 22, which the Senate ratified only subject to a reservation that reads:
“The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.” Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102—23, (1992).

Source

 

[Fantasea]

Quote=ShamMo

Originally Posted by Fantasea
You miss the point. Justices are appointed to do one thing and one thing only. That is to support, uphold, and defend the United States Constitution; to the exclusion of all others.

Justices are not appointed to bring their individual thoughts, wishes, and desires to the bench in order to fix, bend, or tweak laws that do not suit their individual philosophies. To do so would be a violation of the oath they swore. That is the complaint with 'activist' judges.

If there are Senators or US Representatives who believe that Justices should have the freedom to interpret things differently, they should introduce legislation to that effect and see where it goes. If their proposals become law, then so be it. Until then, Justices are bound to uphold existing law.

i guess i don't have to say anything other than, they do. they uphold the existing law or rule it unconstitutional using the constitution as the main part of their argument.

Main? What do you mean "main"?

If not the US Constitution and the laws that have been determined to be constitutional, upon what is the remainder of the decision supposed to be based?

Have we forgotten that the three branches of government are the executive, the legislative, and the judicial? The government was deliberately organized in that fashion in order to have checks and balances in order to prevent abuses of power.

If a Justice bases a decision upon anything but the laws of the United States, then that Justice is writing new law which is a usurpation of power belonging to the legislative branch of government. Any Justice doing so should be removed from the bench for failing to uphold the sworn oath of office.

Is there anything here that is not perfectly clear?

 

[ShamMol]

Quote=ShamMo
Main? What do you mean "main"?

If not the US Constitution and the laws that have been determined to be constitutional, upon what is the remainder of the decision supposed to be based?

Have we forgotten that the three branches of government are the executive, the legislative, and the judicial? The government was deliberately organized in that fashion in order to have checks and balances in order to prevent abuses of power.

If a Justice bases a decision upon anything but the laws of the United States, then that Justice is writing new law which is a usurpation of power belonging to the legislative branch of government. Any Justice doing so should be removed from the bench for failing to uphold the sworn oath of office.

Is there anything here that is not perfectly clear?

Oh, it is quite clear. We are just at an impass. You believe one thing that won't change and you refuse to even acknowledge mine, so, I will explain it one more time. The U.S. constitution is used in every single decison by the United States Supreme Court. In fact, you seem to answer your own questions. Would you like to impeach the court who decided Marbury? Just a hypo hear, but listen. There is nothin in the constitution that allowed them to do what they do. Only what it called an "implied power" to the courts.

The Supreme Court actually is allowed to base their decisions on something other than the US Constitution, you know why that is? Because they said so. They don't need the Congress's permission. Did they need their permission to write their opinion in Marbury? Or was that wrong too. The court can delegate itself powers to prevent abuse by other branches (check and balance) and to help itself govern, not unlike the legislative branch delegating itself powers all the time.

Now after going through all this, the point I made earlier still remains. The Supreme court has...lets make this simple...two levels for deciding their decison. The first level is the constitutional issue. The second level is all the cases that support their finding, whether it be international or national. So, the one thing that matters is the constitution, but the other stuff brought in is just...filler...makes them feel like they are doing their job. So, let's reiterate... Constitution is what is important...just because they include other stuff doesn't mean that is the basis for their arguments....can't make it any simpler.

Next time you quote me, please use my full name, ShamMol.

 

[shuamort]

Isn’t the majority on the SC left leaning?

Well,
Rehnquist was appointed by Nixon (Republican President)
Stevens was appointed by Ford (Republican President)
O'Connor by Reagan (Republican President)
Scalia by Reagan (Republican President)
Kennedy by Reagan(Republican President)
Souter by Bush (Republican President)
Thomas by Bush (Republican President)
Gainsburg by Clinton (Democrat President)
Breyer by Clinton (Democrat President)

Hunh, I never thought about it all until I sat down and compiled the list. (And I can never remember Breyer for some reason).

 

[Squawker]

I have always viewed Kennedy as on the left, but from my perspective I only see three true Republicans.

There are three main voting blocs on the Court. The liberals, consisting of Ginsburg, Stevens, Souter, and Breyer; the center-right bloc (O'Connor and Kennedy); and the Conservative bloc (Rehnquist, Scalia, and Thomas).
The Conservatives and the center-right bloc often form a 5 vote majority to defeat the liberals. O'Connor is often the decisive vote, defecting to the liberals or staying with the conservatives. In a recent case, Kyllo v. United States, 533 U.S. 27 (2001) (per Scalia, J.; dissent by Stevens, J.) the blocs were scrambled. The majority consisted of Scalia, Souter, Thomas, Ginsburg, and Breyer; the dissenters were Rehnquist, Stevens, O'Connor, and Kennedy.

Source

 

[ShamMol]

yeah, it is wierd, most people in this country see him as moderate to right wing...but there are three true conservatives there, you got that right

 

[Fantasea]

Quote=ShamMoQuote:

Originally Posted by Fantasea

Main? What do you mean "main"?

If not the US Constitution and the laws that have been determined to be constitutional, upon what is the remainder of the decision supposed to be based?

Have we forgotten that the three branches of government are the executive, the legislative, and the judicial? The government was deliberately organized in that fashion in order to have checks and balances in order to prevent abuses of power.

If a Justice bases a decision upon anything but the laws of the United States, then that Justice is writing new law which is a usurpation of power belonging to the legislative branch of government. Any Justice doing so should be removed from the bench for failing to uphold the sworn oath of office.

Is there anything here that is not perfectly clear?

Oh, it is quite clear. We are just at an impass. You believe one thing that won't change and you refuse to even acknowledge mine, so, I will explain it one more time. The U.S. constitution is used in every single decison by the United States Supreme Court. In fact, you seem to answer your own questions. Would you like to impeach the court who decided Marbury? Just a hypo hear, but listen. There is nothin in the constitution that allowed them to do what they do. Only what it called an "implied power" to the courts.

The Supreme Court actually is allowed to base their decisions on something other than the US Constitution, you know why that is? Because they said so. They don't need the Congress's permission. Did they need their permission to write their opinion in Marbury? Or was that wrong too. The court can delegate itself powers to prevent abuse by other branches (check and balance) and to help itself govern, not unlike the legislative branch delegating itself powers all the time.

Now after going through all this, the point I made earlier still remains. The Supreme court has...lets make this simple...two levels for deciding their decison. The first level is the constitutional issue. The second level is all the cases that support their finding, whether it be international or national. So, the one thing that matters is the constitution, but the other stuff brought in is just...filler...makes them feel like they are doing their job. So, let's reiterate... Constitution is what is important...just because they include other stuff doesn't mean that is the basis for their arguments....can't make it any simpler.

I don't agree that one of these days when a case involving euthanasia is presented to the Supreme Court, that a Justice may correctly opine that irrespective of the US law involved, that the laws of the Netherlands, which are quite liberal on the subject, would make a better fit with his own philosophy.

 

[ShamMol]

I don't agree that one of these days when a case involving euthanasia is presented to the Supreme Court, that a Justice may correctly opine that irrespective of the US law involved, that the laws of the Netherlands, which are quite liberal on the subject, would make a better fit with his own philosophy.

please, please quote me right...

but you see, that wouldn't happen. what they would do is this. they would find where in the constitution it supported their side, write up the majority of the opinion on that issue, and then throw in some stuff about the netherlands...where did that come from btw...

 

[Squawker]

The Supreme Court actually is allowed to base their decisions on something other than the US Constitution, you know why that is? Because they said so. They don't need the Congress's permission. Did they need their permission to write their opinion in Marbury? Or was that wrong too. The court can delegate itself powers to prevent abuse by other branches (check and balance) and to help itself govern, not unlike the legislative branch delegating itself powers all the time.

You are wrong here. Just because a judgement wasn't challenged at the time doesn't mean it is written in stone. If that were the case who would check the Judiciary? We are seeing another part of history unfold, in that the Legislature is making that challenge today. (check and balance)

 

[ShamMol]

You are wrong here. Just because a judgement wasn't challenged at the time doesn't mean it is written in stone. If that were the case who would check the Judiciary? We are seeing another part of history unfold, in that the Legislature is making that challenge today. (check and balance)

yes, I agree that it is not written in stone, but it should be interesting to see this...check and balance...play out...