What Do We Do About Activist Judges?

Squawker · 03-15-05, 06:42 PM

This has been going on since Roe VS Wade, but it seems to be getting worse. Judges are making laws, (by calling something unconstitutional) from Religion to Gay marriage. Why are we allowing these judges to undermine our Constitution, and over ride our own legislature and peoples voice?

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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.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

Source

Squawker · 03-15-05, 08:08 PM

Sorry about answering my own post first, but I wanted to include this which pertains to the subject. Mark Levin has a new book out – this is a review of it, so if you are interested in the history of the Supreme Court, this is a must read. We should all be outraged at what we have allowed them to do.

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In "Men in Black," Levin takes us on an engrossing ride through history detailing how the Supreme Court has arrogated to itself a sort of tyrannical power that threatens our constitutional architecture and freedom.
From its pronouncements on the Commerce Clause, to its rulings on abortion, immigration, civil rights for terrorists, religious liberty, affirmative action, pornography and election law, Levin shows how the Court has usurped authority from the other two branches to become the most powerful of the three.
The judiciary was never intended to be a policy-making branch, unaccountable to the people. But that is precisely what it has become, as Jefferson and others ominously predicted. And the situation is getting worse.
In recent years, presumably out of some irresistable urge to impress "enlightened" European socialists, certain progressive Supreme Court justices have been flirting with the idea of grafting the laws and customs of foreign nations into the Constitution without a scintilla of authority under the Constitution to do so.

ShamMol · 03-16-05, 12:46 AM

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"Why in the world would you have it interpreted by nine lawyers?" he said.

Because, as designated by the Marbury case, that is the courts responsibility. The country may not want the "nine [highly qualified and brilliant] lawyers" interpreting the constitution, but that is literally their job. It is their job to decide what is and what is not constitutional.

If a law came up saying that driving a car was illegal, and they said that was unconstitutional, would you have the same outcry because they are legislating from the bench, as you put it. No, you wouldn't. This is their job, nothing more, nothing less.

The lower courts in briefs and motions befor trials decide whether laws are applicable in the case and in some cases decide htat the law is not constitutional, and therefore the case does not go forward. Is that legislating from the bench? No, it is doing their job. Period.

--Onto Mark Levins--

Quote:

In "Men in Black," Levin takes us on an engrossing ride through history detailing how the Supreme Court has arrogated to itself a sort of tyrannical power that threatens our constitutional architecture and freedom.
From its pronouncements on the Commerce Clause, to its rulings on abortion, immigration, civil rights for terrorists, religious liberty, affirmative action, pornography and election law, Levin shows how the Court has usurped authority from the other two branches to become the most powerful of the three.
The judiciary was never intended to be a policy-making branch, unaccountable to the people. But that is precisely what it has become, as Jefferson and others ominously predicted. And the situation is getting worse.
In recent years, presumably out of some irresistable urge to impress "enlightened" European socialists, certain progressive Supreme Court justices have been flirting with the idea of grafting the laws and customs of foreign nations into the Constitution without a scintilla of authority under the Constitution to do so.

This man first off is extremely biased. Just look who he normally writes for...the National Review, a right-wing media corporation that is the conservative hack the liberals make Greenspan out to be (he is really not a hack, but he has to keep his job). So, take everything he says with a grain of salt. If you read the statement...the only thing, according to Mark Levin, that the court should do, is restrict rights (which actually it can't really do per se under the 9th amendment...but hey, we'll let that slide). But in fact, under the first courts ruling, they interpret, define, and decide whethere laws are unconstitutional. It is their job.

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.

Hoot · 03-16-05, 07:19 AM

>>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.

shuamort · 03-16-05, 10:59 AM

Quote:

Originally Posted by Squawker

This has been going on since Roe VS Wade, but it seems to be getting worse. Judges are making laws, (by calling something unconstitutional) from Religion to Gay marriage. Why are we allowing these judges to undermine our Constitution, and over ride our own legislature and peoples voice?

It IS constitutional. Has been since Marbury v Madison in 1803. That's 200+ years. They're NOT overriding the legislature, they're interpretting the law and then the legislature has the ability to write a clearer bill that will enforce the will of the people. What's the misunderstanding?

shuamort · 03-16-05, 11:01 AM

By the way, judges don't just sneak into the courts and start making rulings. They are either elected by the common folks or are appointed by people whom we've voted in. Should Rehnquist die/retire, Bush, who was elected by the people*, will get to fill in that position.

*Edited to include: Elected by the electorate of the people. Sorry. Electoral collegiate mistake.

shuamort · 03-16-05, 12:29 PM

Oh, you know Squawker, we went over this before too. You weren't able to refute the arguments about judicial fiats in this thread either.

Squawker · 03-16-05, 05:28 PM

Quote:

Oh, you know Squawker, we went over this before too. You weren't able to refute the arguments about judicial fiats in this thread either.

I was the last one to post in that thread, so I don’t see how I failed to do anything. The Marbury v. Madison case, was just a political p*ssing contest because the Republicans won the election. (Some things never change) The court assumed new powers that were not entitled to them. In typical Republican style even then, the legislature didn’t fight it.

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Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.
The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

Source

What Scalia said, was that it has to be in the constitution, for the courts to be allowed to rule on it. The constitution does not give a woman the right to kill her own child, therefore the court cannot decide that it is “unconstitutional”.

shuamort · 03-16-05, 05:42 PM

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Originally Posted by Squawker

I was the last one to post in that thread, so I don’t see how I failed to do anything.

You failed because your posts were no longer germane to my points.

Quote:

Originally Posted by Squawker

The Marbury v. Madison case, was just a political p*ssing contest because the Republicans won the election. (Some things never change) The court assumed new powers that were not entitled to them. In typical Republican style even then, the legislature didn’t fight it.
Source [/b]

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Of course, this has been in effect for over 200 years. And at that time, the republicans (vs the Federalists) held control not only over the Congress but the Presidency. If they didn't like the MvM decision, they most certainly could have legislated a law to stop it. And so on over the last 200 years. And you know what? That HAS NOT HAPPENED. It sure hasn't been too problematic over the course of the last 200 years to keep the balance of power in check by means of MvM (Dred Scott excluded, of course).

Quote:

Originally Posted by Squawker

What Scalia said, was that it has to be in the constitution, for the courts to be allowed to rule on it. The constitution does not give a woman the right to kill her own child, therefore the court cannot decide that it is “unconstitutional”.

Scalia's loosey goosey interpretation of what is in the constitution is laughable. He has a hard time understanding what precedence is and as such is a fringe member of the far right.

Squawker · 03-16-05, 06:38 PM

Shuamort said:

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You failed because your posts were no longer germane to my points.

lol Thank you for clarifying the debate rules for us.

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Of course, this has been in effect for over 200 years. And at that time, the republicans (vs the Federalists) held control not only over the Congress but the Presidency. If they didn't like the MvM decision, they most certainly could have legislated a law to stop it. And so on over the last 200 years. And you know what? That HAS NOT HAPPENED. It sure hasn't been too problematic over the course of the last 200 years to keep the balance of power in check by means of MvM (Dred Scott excluded, of course).

As you know, the court did not misuse their assumed power or usurp their authority until the 20th century. The legislature failed to do their job, but that doesn’t mean we should continue to allow them to abdicate decisions to the court. The States have lost the ability to make law “for the people, by the people.

Quote:

Scalia's loosey goosey interpretation of what is in the constitution is laughable. He has a hard time understanding what precedence is and as such is a fringe member of the far right.

Unless you have the education Justice Scalia has, I suggest you keep your insults to yourself. Do you intend to have a serious discussion or just use this forum to bash Republicans?