Quote :

"We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below. (This piece was originally published in the New York Times on July 6, 2005.) Thomas 65.63 % Kennedy 64.06 % Scalia 56.25 % Rehnquist 46.88 % O'Connor 46.77 % Souter 42.19 % Stevens 39.34 % Ginsburg 39.06 % Breyer 28.13 %"

The conservative ones are legislating from the bench and thwarting the will of the people! IMPEACH THOMAS, SCALIA AND KENNEDY!!!

[Edited on November 1, 2005 at 9:26 AM. Reason : http://www.law.yale.edu/outside/html/Public_Affairs/614/yls_article.htm]

11/1/2005 9:24:29 AM

The problem is that the Congress does make laws that are illegal under the Constitution. When that happens, the Court has no choice but strike such a low down.

I agree though that this argument "don't legislate from the bench" becomes kinda stupid when your side is the one that routinely fights the Congress' decisions.

11/1/2005 9:28:25 AM

OMFG! IF I TYPE IN ALL CAPS PEOPLE WILL LISTEN TO ME!

no one really cares, btw.

11/1/2005 9:29:18 AM

and

11/1/2005 9:30:43 AM

I would be curious in looking at the average age of the laws voted against. I wonder if conservatives are more likely to overturn new legislation and the liberalz are more likely to overturn 200 years of precedent.

[Edited on November 1, 2005 at 10:06 AM. Reason : asdf]

11/1/2005 10:05:50 AM

^That wouldnt really work either, because they have about 70 years of precedence in their favor.

This seems right to me, surprisingly the constitution says a lot about limiting the power of the federal government.

11/1/2005 10:45:02 AM

You mean to say you are curious to find data to back up what you already believe

11/1/2005 10:45:27 AM

Quote :

"This seems right to me, surprisingly the constitution says a lot about limiting the power of the federal government."

It certainly does. However, as a practical matter that renders the argument of the conservatives "OMF if you want a change, do it through the legislature!!1 judicial activism no pasaran!!1" stupid. The stats, if true, show that's what the liberals do routinely and the conservative judges then strike the resulting laws down.

Again, in my opinion, you often must strike laws down but you cannot do that and bitch about courts undermining the power of legislature at the same time.

Quote :

"You mean to say you are curious to find data to back up what you already believe"

pwnt

[Edited on November 1, 2005 at 11:21 AM. Reason : .]

11/1/2005 11:20:35 AM

Quote :

"You mean to say you are curious to find data to back up what you already believe"

Sure, but if the data was to refute my beliefs that would be cool too. It would be nice to know if the so called "conservative" judges were in fact putting their rullings where their mouths are.

Quote :

"Again, in my opinion, you often must strike laws down but you cannot do that and bitch about courts undermining the power of legislature at the same time."

I think everyone is attempting to over-generalize. The complaint of "judicial activism" is levied against judges which do not base their rulings on either precedent or the constitution. Citing legislation from other states or nations to strike down a 100 year old marriage law seems indefensible. On the other hand, had the SC ruled the 2002 capaign finance laws unconstitutional on the basis of the first amendment, could you really call that activism?

11/1/2005 11:48:27 AM

marriage laws have nothing to do with the supreme court

11/1/2005 11:52:22 AM

Quote :

"On the other hand, had the SC ruled the 2002 capaign finance laws unconstitutional on the basis of the first amendment, could you really call that activism?"

The irony is that you're asking for my opinion. I know it doesn't mean you don't have your own but the point still stands. Constitution unfortunately does not really contain a clear list of what's allowable and what's not. The article prohibiting "cruel and unusual punishment" would be an extreme example of where the SCOTUS is basically directly instructed to pull it out of their asses what's legal and what isn't. In other situation, they similarly need to infer something from a generally vague text. Like some say the words "separation of church and state" are nowhere in the Constitution. OK, but how about "fair trial"? Is that anywhere there? Or can we agree that that's an implied right that originated from both the text of the Constitution and the "common sense"?

Personally, I think the Constitution as such is overrated. It's a reasonable text, but it's not at all that great. I mean, it allowed slavery. How great can anything that allows slavery be? I think there're important principles there that make it work, like federalism, for example. It's those principles that need to be defended out of well, principles, as well as for reasons of pure practicality. If the country did fairly well so far, let's not fix it too much. But I don't buy into this hope that one can find some perfect people who will interpret the perfect document perfectly and the Heaven will descend on the Earth.

[Edited on November 1, 2005 at 12:11 PM. Reason : .]

11/1/2005 12:09:30 PM

Quote :

"marriage laws have nothing to do with the supreme court"

Never heard of the Supreme Court of Massachusetts, have you?

^ You just went crazy there, didn't you? Who said anything about "perfect" anything? You have fallen victim to the classic blunder! You somehow feel that Judges should do what is "right" and "just."

Quote :

"How great can anything that allows slavery be"

This statement is rather silly. What on Planet Earth does not allow slavery? Wouldn't this imply there is no such thing as "great"?

11/1/2005 1:42:19 PM

Quote :

"You somehow feel that Judges should do what is "right" and "just." "

Yes, they often have no other choice. I made an argument why. You conveniently chose to ignore all of that. You have fallen victim to a classic blunder. Talk about some abstract nicely sounding ideas, but pay no attention to the reality.

Quote :

"What on Planet Earth does not allow slavery? "

Uhm, present Russian constitution, for example, doesn't allow slavery. What in the fuck is your real question?

Quote :

"Wouldn't this imply there is no such thing as "great"?"

Wouldn't what imply that?

11/1/2005 1:47:49 PM

The 13th ammendment is part of the constituion so as such it does not allow slavery.

[Edited on November 1, 2005 at 1:50 PM. Reason : ]

11/1/2005 1:49:37 PM

I was talking about the original Constitution. You know, "OMF That's not what Teh Founding Fathers (including slave owners and rapists) had in mind" and all that.

11/1/2005 1:51:14 PM

well the founding fathers were against slavery even if they had an extraordinary capacity for hypocricy in that regard, if youre only looking to their words and not their actions then its not too much of a problem.

And secondly originalists dont pretend that the constitution doesnt include ammendments or any other such nonsense and instead see the post civil war ammendments as having been a tremendous improvement upon the text.



[Edited on November 1, 2005 at 2:05 PM. Reason : ]

11/1/2005 2:03:00 PM

My point is that even the originalists make inferences about what the Constitution implied as opposed to clearly said. As I said, sometime that is due to the fact that the Constitution all but screams in your ears "please to imply" as is the case with the "cruel and unusual punishment". Other times, they apply "common sense".

Again, you can talk abstractly all you want, and I'll probably agree with 80% of that as a matter of principle. However, Alito, for instance, said a search warrant saying "search that guy and his home" intended to mean "also strip search his wife and the 10 yr old daughter". Tell me, is this guy a judicial activist as a practical matter?

11/1/2005 2:11:05 PM

Quote :

"My point is that even the originalists make inferences about what the Constitution implied as opposed to clearly said. As I said, sometime that is due to the fact that the Constitution all but screams in your ears "please to imply" as is the case with the "cruel and unusual punishment". Other times, they apply "common sense". "

Im not arguing that no one ever has to make any inferences about what the constiution implies, thats obviously not true. Its how those inferences are made that matter.

For instance with interstate commerce, obviously that is not something that has a clear cut definition. That should not mean that you get to make that term mean anything and everything you want it to mean. Instead you should look to what the writers meant by the term for guidance and then go from there. Yes that does allow some leeway but it cannot go as far as modern precedence allows it to.

The purpose of originalism is not to believe that the document is perfect or to get everything exactly right but to try to interpret and apply the law as it was intended and as strictly as possible. If the people wish to change it, they have ways of doing so.

And I havent read that decision so Im a little weary of just going on whats been put out in the media since often people's arguments are horribly misrepresented.

[Edited on November 1, 2005 at 2:27 PM. Reason : ]

11/1/2005 2:26:39 PM

Quote :

"And I havent read that decision so Im a little weary of just going on whats been put out in the media since often people's arguments are horribly misrepresented."

LOL! The search warrant explicitly mentioned the guy and his home. The police used it to search two other people never mentioned in the search warrant. And now you need what to see if it was justified? Judge's argument? And you're against judicial activism, right? LOL!!!!

11/1/2005 2:45:18 PM

http://vls.law.villanova.edu/locator/3d/March2004/024532p.pdf

thats his opinion, I dont particularly like it but I dont think its as nearly clear cut as you are making it out to be.

Secondly I never said that these justices would be perfect in every single case before them, I merely said that they should try to interpret and apply it as strictly as possible not that they accomplish that every time and be infallible.

11/1/2005 3:03:10 PM

The idea of precedent has always seemed silly to me. It would seem that it has the potential to pile new fuckups on top of old ones all the way back to the fuckups that might be in the Constitution itself. But then again, I'm a cynic that admitedly knows very little about the judicial system.

So yes, I would agree with this:

Quote :

"Personally, I think the Constitution as such is overrated. It's a reasonable text, but it's not at all that great."

[Edited on November 1, 2005 at 3:06 PM. Reason : .]

11/1/2005 3:04:01 PM

MathFreak, the constitution was not intended to never change. This is where the amending process comes in. "originalist" judges do realize there have been amendments made to the constitution and that further amendments can be made at any time.

The only distinction is that non-activist judges interpret what the constitution says and not what they wish it would say. If we amend it to guarantee the right to have an abortion then for all time every originalist will conceid to a womens right to abort.

If you want it changed then change it, don't appoint judges to "reinterpret it" because that is what got us into this mess. If Roe v Wade had been decided differently, then maybe a sufficiently large consensus would have been created to amend either the Fed or State constitution to guarantee it. But they didn't, so now that the other party is making appointments, this "right" is threatened.

11/1/2005 3:43:46 PM

Quote :

"thats his opinion, I dont particularly like it but I dont think its as nearly clear cut as you are making it out to be. "

I hate to be anal (no, I don't) but I truly suspect the grandest of ironies is that the above shows your absolute misunderstanding of what judicial activism is and why it is a problem. Furthermore, it can be implied that you are in fact a proponent of judicial activism.

First off, virtually no case that makes it to court is "clear cut". If it's clear cut, it'll be resolved without a judge. Also, contrary to what the talking heads from Fox News might have told you, judges don't make obviously stupid decisions. Well, virtually never. No judge has ever read the first Ammendment and seen a constitutional right to free ice-cream. The whole problem is that every decision sounds reasonable at least to a listener inclined to listen, but there often are more than one "reasonable" interpretation. It's not, however, their call to choose one of them, it's the job of the legislature. Therefore, the minute they see a possibility for more than one reasonable argument, they should immediately defer to the legislature to make one.

In the cited case, I, frankly, even fail to see rationality in Alito's argument, but I may be biased. My point is though that it's irrelevant what I think about his argument. Because his argument is irrelevant. Because there is a reasonable way to interpret the particulars of that case so as to afford the woman and the girl more rights under the 14 ammendment rather than less, and that's what any judge should have done.

Again, I like your general comments, but I wanna look at specifics and see how you would see specific cases. If a search warrant mentions person A, you allow that there may be an argument justifying a court's decision that it must have meant people B and C. That to me is advocating judicial activism.

Again, the problem is not that you defend a judge who was not perfect. The problem is that you seem to defend an act of judicial activism.

11/1/2005 5:39:58 PM

Quote :

"The problem is that you seem to defend an act of judicial activism."

Would it mean anything to you if I said I didn't mind judicial activism per se?

If the Court woke up tomorrow and decided to unravel every bit of labor and environmental regulation at the Federal Level because it violated the separation of powers (10th Amendment), you would be right to call it judicial activism. But you couldn't argue it was activism without constitutional backing. The problem here is the misuse of the word activist. I suspect judges that make unconstitutional rulings should instead be called "Bad Judges" but we must use the language understood by most people.

What is unconstitutional? Obviously, the eminent domain case is not clear-cut, it can be read multiple ways. But the 1st Amendment would explicitly cut out the current campaign finance laws. And the 10th Amendment explicitly prevents a federal minimum wage statute (it may regulate "Interstate Commerce" not "Things that affect interstate commerce").

11/1/2005 8:38:25 PM

^^I already said that I didnt particularly like the decision.

But when you said this:

Quote :

" LOL! The search warrant explicitly mentioned the guy and his home. The police used it to search two other people never mentioned in the search warrant. And now you need what to see if it was justified? Judge's argument? And you're against judicial activism, right? LOL!!!!"

As you can see from the argument that there is a question over how an affidavit is included with respect to a warrant not that the police can use a warrant to search whoever the hell they want like you tried to make it out to be in this quote.

Now the argument isnt particularly great but I couldnt go on just what the media said because there could have been any number of factors involved in the decision that werent included in the talking point that might have very well justified his position.

So if you want me to call it activism, fine. Now that Ive read the opinion I feel more comfortable in doing so.

[Edited on November 1, 2005 at 9:05 PM. Reason : ]

[Edited on November 1, 2005 at 9:09 PM. Reason : ]

11/1/2005 9:04:02 PM

As to judicial activism, I think Thomas Jefferson put it best:

Quote :

"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please."

I believe he made the suggestion that for every generation -- roughly each 20 years, in his day -- there would be a Constitutional Convention.

As of today, we have yet to have another such convention despite a Civil War and 27 amendments of varying severity. Yet Thomas Jefferson's logic does still hold: "The earth belongs always to the living generation."

Of course pragmatism holds fast -- a Constitutional Convention would surely be a ruinous morass of special and backwater interests, and probably a few doses of cynicism.

Still -- the Constitution should not be misinterpreted or vastly reinterpreted to suit a particular end, but neither should it be an anachronism. To that extent, I don't think judges should rest on their laurels. I don't like the term "constructionism" because it seems to imply that a construct can be made independent of the time and place from which it originated. It implies that the constructs which applied decades or centuries ago -- to the dead -- should necessarily apply to the living today.

Like everything else, interpreting the Constitution is just a balancing act that requires a certain amount of common sense.

If anything though, I think judges should limit themselves in that they are particularly unsuited to practice common sense -- they are basically royalty, they don't work for a living in the usual sense, and they are generally unaccountable.

11/2/2005 12:56:06 AM

Quote :

"As you can see from the argument that there is a question over how an affidavit is included with respect to a warrant not that the police can use a warrant to search whoever the hell they want like you tried to make it out to be in this quote. "

I never said that. That would have been equivalent to saying Alito's decision was totally ridiculous. I specifically said the opposite, which is that I believe that virtually every decision of every judge (and moreso of a judge of that level) is "reasonable" in some sense. The problem with that decision is that it's not "minimalistic" in nature, in my opinion that is. He went pretty far in his conclusion while basing his logic on nothing but "common sense". Which to me is a form of judicial activism. And his activism (in this particular case) looks much worse than anything the liberals had done. At least the liberals at worst invent things that are strictly speaking not in the law. This guy went as far as to suggest the existing clearly written law can be interpreted to mean exactly the opposite or perhaps rather ignored.

11/2/2005 1:34:12 AM