Curbing Judicial Activism

[JFK_USA]

Maybe if you actually read it? It lists duties and scope of the job. As with the rest of the Constitution, if something is not specifically mentioned, the rights fall to states and individuals.

As to the Obamacare argument, there is no need for further argument. Religious rights are guaranteed in the Constitution. You don't need to meet multiple rights for it to be protected.

Your grasp of the Constitution and law are very limited perhaps you should argue in threads you have a better working knowledge of the subject matter.

I have read the Constitution and Article 3. You are right that it describes the scope and the job of the courts and gives the right to a jury trial for all criminal proceedings. However it does not state how judges are supposed to rule. That's what PC wants the courts to do. To rule in the way she wants them to rule.

And PC started this by saying case law doesn't matter. Yes it does. That's how we have our rulings. That's why Marbury vs. Madison is the foundation of our judicial process. Case law matters.

Case law doesn't trump the Constitution however. There are dissenting opinions frequently and as the body of the court changes we see refinements or reversals. The biggest flaw in the judicial process is selection of justices. It is a political filter.

And an election by the people of judges would be political as well. There is really no way to not make it political. I feel that the system is the best way to do it. However with the hyper partisanship and the Internet in play. Any judge's decision that may be construed as liberal or conservative is going to get hammered by the other party and despite the accomplishments of said judge, they won't get a position because of one decision.

I mean you saw it with Obama's appointment for the DOJ's civil right division. He writes a brief as a young attorney that the jury instructions in a cop killer case were faulty and the judge agrees so instead of the death penalty, he gets life imprisonment. However, the right attack him as supporting cop killers. News flash, lawyers like upward mobility. Yet when you send the message that if you defend a certain criminal or make a certain decision, you'll never get a political appointment, that's a direct threat to our legal system. Lawyers won't defend a certain client if they have a choice and if someone works as a public defender, they are screwed politically.

I just don't see a way politics doesn't get involved in the selection process of judges in our judicial system.

 

[saveliberty]

Thank you for participating in this discussion JFK_USA. I would not want to see judges elected by the public either. What I would like to see is a system that selects the most objective judges based on past decisions and Constitutionally based. From that field the president can appoint and Congress can confirm as it has been in past practice.

 

[Cecilie1200]

Marbury v. Madison was not an invitation to judicial activism. The Supreme Court was meant to function as a body outside politics for the most part. FDR and others have tried to bring it into the realm of politics. Activist courts corrupt checks and balances.

Wish I had another rep for this post.

I handled it for you.

 

[Cecilie1200]

I have read the Constitution and Article 3. You are right that it describes the scope and the job of the courts and gives the right to a jury trial for all criminal proceedings. However it does not state how judges are supposed to rule. That's what PC wants the courts to do. To rule in the way she wants them to rule.

And PC started this by saying case law doesn't matter. Yes it does. That's how we have our rulings. That's why Marbury vs. Madison is the foundation of our judicial process. Case law matters.

Case law doesn't trump the Constitution however. There are dissenting opinions frequently and as the body of the court changes we see refinements or reversals. The biggest flaw in the judicial process is selection of justices. It is a political filter.

And an election by the people of judges would be political as well. There is really no way to not make it political. I feel that the system is the best way to do it. However with the hyper partisanship and the Internet in play. Any judge's decision that may be construed as liberal or conservative is going to get hammered by the other party and despite the accomplishments of said judge, they won't get a position because of one decision.

I mean you saw it with Obama's appointment for the DOJ's civil right division. He writes a brief as a young attorney that the jury instructions in a cop killer case were faulty and the judge agrees so instead of the death penalty, he gets life imprisonment. However, the right attack him as supporting cop killers. News flash, lawyers like upward mobility. Yet when you send the message that if you defend a certain criminal or make a certain decision, you'll never get a political appointment, that's a direct threat to our legal system. Lawyers won't defend a certain client if they have a choice and if someone works as a public defender, they are screwed politically.

I just don't see a way politics doesn't get involved in the selection process of judges in our judicial system.

Well, there is always the possibility of limiting the amount of time someone can spend on the Supreme Court. I realize that the Founders set it up the way they did with the intention of it making the Justices apolitical, because they do not have to stand for re-election or review. However, I think we can all agree that this is not how it worked out. Instead, most of our Justices have taken their lifetime tenure as license to set themselves up as tin gods.

I also think they expected that we would use the power of impeachment to ride herd on rogue judges a lot more than we do. I don't believe they anticipated - or wanted - that we would just shrug and say, "Well, they're on the Supreme Court. They can do whatever they want, and we have to live with it."

 

[Agit8r]

Compare Brennan's idea that judges know what is best, no matter what the law says, to Chief Justice Robert's at this nomination:

"WASHINGTON — Chief Justice nominee John Roberts said Thursday there is no room for ideologues on the Supreme Court, declaring an “obligation to the Constitution” and to no other cause as he concluded three grueling days of confirmation testimony.
“If the Constitution says that the little guy should win, the little guy’s going to win in court before me,” Roberts told the Senate Judiciary Committee. “But if the Constitution says that the big guy should win, well, then the big guy’s going to win.” Roberts says he's not an ideologue - US news - The Changing Court | NBC News


Th[at] is the only correct view of one properly called a judge.

So you agree with him about the taxing power?

I haven't seen you around for a while.....

....and now you come back sounding like a dope.


The 'dope' niche is already filled by NYCarb.


So....you can shoot for imbecile, or you can agree with my post.

Either you can admit that your example does not support your own beliefs, or you can agree with Roberts' decision regarding the individual mandate.

 

[Nemo]

Have you ever given any thought on what attributes would be desirable for a law judge?

 

[saveliberty]

It would be helpful if the justices specified whether an opinion was meant to further clarify Constitutional meaning or simply verifying or rejecting it follows the Constitution. Constitutional lawyers seem to want some type of spin in order to create unwarranted Constitutional challenges.

 

[Nemo]

There are rules of construction and interpretation that govern cases involving constitutional issues, federal questions, legislative intent, etc.

 

[saveliberty]

There are rules of construction and interpretation that govern cases involving constitutional issues, federal questions, legislative intent, etc.

Good morning Nemo and PoliticalChic.

Yes, there are rules, yet look at what happens in practice.

 

[Nemo]

The interpretation that counts, in the end, is that of the Supreme Court. And, while it is certainly possible - humans being fallible - for the Supreme Court to err in its judgment, it must be recognized that the Supreme Court is the final arbiter of the interpretation of the Constitution, and its decisions, whether you consider them good or bad, are binding as law until overturned by the court, legislative enactment, or by constitutional amendment. As Mr. Justice Jackson put it: "We are not final because we are infallible, but we are infallible only because we are final." Associate Justice Robert H. Jackson, Concurring Opinion in Brown v. Allen, 344 U.S. 443 (1953).

 

[saveliberty]

The court does not interpret the Constitution it applies it. Their opinions discuss how they apply it. No one is suggesting we ignore the court or the Constitution, I must not be understanding the purpose of your post.

 

[Nemo]

The court cannot apply the Constitution without interpreting its provisions.

 

[regent]

Have you ever given any thought on what attributes would be desirable for a law judge?

To be a member of the Supreme Court I would require the appointee have graduated from from law school?

 

[PoliticalChic]

Have you ever given any thought on what attributes would be desirable for a law judge?

To be a member of the Supreme Court I would require the appointee have graduated from from law school?

That, in effect, means a requirement to ignore the Constitution.


I suggest a study of the efforts of Progressives Roscoe Pound....

"...that Pound was an extremely influential figure who had a very negative influence on American constitutional law. In particular, Pound was the founder and leading light of “sociological jurisprudence,” which in turn influenced constitutional interpretation for decades to come, and not in a good way…."
Roscoe Pound, Enemy of American Constitutionalism | The Volokh ConspiracyThe Volokh Conspiracy


...and Christopher Columbus Langdell....

"Langdell is especially famed for the introduction of the "case method" in the study of law. In his view the principles of law are best learned by inductive study of the actual legal situations (the cases) in which they occur. ... Langdell's theory was first adopted at Harvard, then at Columbia law school, and in time gained almost universal acceptance. Langdell prepared casebooks in the fields of contracts, equity, and sales."
http://www.encyclopedia.com/topic/Christopher_Columbus_Langdell.aspx



I have no doubt that you are totally unaware of the damage done to the nation by those two in particular.

 

[PoliticalChic]

The court cannot apply the Constitution without interpreting its provisions.

You are a moron.

Do you speak English?

Do you know the language in which the Constitution is written?

 

[PoliticalChic]

The court does not interpret the Constitution it applies it. Their opinions discuss how they apply it. No one is suggesting we ignore the court or the Constitution, I must not be understanding the purpose of your post.

Sadly, the court not only 'interprets' the Constitution....it re-writes it.

 

[Nemo]

That is interesting. Did you know that there are justices of the Supreme Court that did not graduate (or even attend) law school - including some of the greatest to serve on the court?
Robert H. Jackson - Wikipedia, the free encyclopedia

 

[saveliberty]

It is apply, one of the first steps is figuring out which part of the Constitution is being applied in the issue.

Remember hanging chads? The lawyers for the Democrats were arguing intent (interpretation). They lost.

 

[Nemo]

The first question to be answered in every case is whether or not the court has subject matter jurisdiction, which determination cannot be made without interpreting the provisions of Article III, Section 2 of the Constitution. (By the bye, this will be the first question to be addressed in Speaker John Boehner's proposed lawsuit against President Obama.)

 

[saveliberty]

The first question to be answered in every case is whether or not the court has subject matter jurisdiction, which determination cannot be made without interpreting the provisions of Article III, Section 2 of the Constitution. (By the bye, this will be the first question to be addressed in Speaker John Boehner's proposed lawsuit against President Obama.)

Applying, never interpreting.