AMERICAN CONSERVATISM IN 2008 AND BEYOND

Setanta wrote:

Scalia and Thomas are more than happy to "legislate from the bench." Conservatives have whine for decades about judicial activism, but change their tune pretty damned quickly when the judicial activist is "writing law" with which they agree.

Please provide a few examples to show that "Scalia and Thomas are more than happy to 'legislate from the bench'."

Quote:
okie wrote:
And I believe conservatives have the most basic belief system of their life pretty well figured out, and it is totally different than what you have stated, we believe in the sanctity of life, and we believe in some pretty basic things given us by God


Cyclo wrote:
That is to say, you believe that stories written in a several-thousand year old book, are a better explanation for the world around you than logical examination of said world. I can't agree that this is true.

Foxfyre, I apologize for intruding upon this thread with the exchange with cyclops, but you know what, I found out some interesting things, I think I actually got to the bottom of why cyclops and probably other liberals look at the world the way they do. This answers alot of questions, or at least confirms suspicions.

Carry on.

wandeljw wrote:

Foxfyre wrote:

Dr. Williams as you posted is a professor of Economics at George Mason University--I believe he was department head for awhile. He writes a widely published syndicated column, has been featured in numerous scholarly journals, and has written a number of books. He has been called as an expert witness before Congress a number of times, is often a guest on various television shows, both conservative and liberal, and substitutes now and then as a radio talk show host. He is quite a philanthropist and serves on a number of charitable boards as well as conservative/libertarian think tanks. He is staunchly libertarian.

Why do you ask?

Does Professor Williams have any expertise in American law? I wonder if Scalia, Thomas, or Roberts would agree with Williams that the role of a supreme court justice is merely to be a "referee."

In addition to a PhD in economics, Dr. Williams also holds a Doctor of Laws which suggests he is far better versed in the law, including Constitutional law, than the average bear. I think Scalia, Thomas, and Roberts have in effect agreed with him re the Court being a referee in the context in which Williams used that.

You mentioned that is 'depressing to hear'. Why? Why would you want a Court that assumed powers of our elected representatives? Can you not see how that would be a horrendous dangers to all of our freedoms?

ican711nm wrote:

Setanta wrote:

Scalia and Thomas are more than happy to "legislate from the bench." Conservatives have whine for decades about judicial activism, but change their tune pretty damned quickly when the judicial activist is "writing law" with which they agree.

Please provide a few examples to show that "Scalia and Thomas are more than happy to 'legislate from the bench'."

See 'Bong hits for Jesus,' a case in which Scalia totally disregarded established law, simply b/c he doesn't like drugs.

Cycloptichorn

If you look at it closely, there should be no overlap of authority between the three branches of government.

Except in very narrow and specific interpretation related to Constitutional authority, no Court should be able to make any decision that cannot be reversed by an action of Congress.

For instance, Congress should not be able to pass any law allowing an activity that is specifically prohibited by the Constitution. Conversely the Court should not be able to declare anything lawful or unlawful that is the prerogative of Congress to do.

"Common law' established by precedent via court decisions is a popular method used to decide cases , but is not law in the sense that precedent becomes mandatory for the court.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
The Bill of Rights (1791)
...
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

http://unabridged.merriam-webster.com/cgi-bin/unabridged?va=militia&x=27&y=10
Main Entry: mi·li·tia
...
Function: noun
...
3 : HOME RESERVE
4 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

Foxfyre wrote:

"Common law' established by precedent via court decisions is a popular method used to decide cases , but is not law in the sense that precedent becomes mandatory for the court.

Precedent is never mandatory for the court.

Cycloptichorn wrote:

Foxfyre wrote:

"Common law' established by precedent via court decisions is a popular method used to decide cases , but is not law in the sense that precedent becomes mandatory for the court.

Precedent is never mandatory for the court.

You're both wrong.

http://www.law.cornell.edu/supct/html/00-949.ZPC.html
Bush v. Gore (00-949)

Opinion
[ Per curiam ]
[ Rehnquist ] Concurrence
[ Stevens ] Dissent
[ Souter ] Dissent
[ Ginsburg ] Dissent
[ Breyer ] Dissent

...

--------------------------------------------------------------------------------

Per Curiam

SUPREME COURT OF THE UNITED STATES

GEORGE W. BUSH, et al., PETITIONERS v.
ALBERT GORE, Jr., et al.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT

--------------------------------------------------------------------------------

[December 12, 2000]

...

On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and Vice President. The Supreme Court noted that petitioner, Governor George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n. 6). The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.

...

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. § 5 Justice Breyer’s proposed remedy"remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by Fla. Stat. §102.168(8) (2000).

...

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.

It is so ordered.

In those instances where the US Supreme Court is confronted with state law, it is absolutely bound by state court precedent, and does not have the option of ignoring the rule of stare decisis. As to its own precedents, the court is, of course, free to ignore them as it sees fit. A lower federal court, in contrast, does not have the same luxury of deviating from precedents set by higher courts.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

WHAT SPECIFICALLY WAS THE CONSERVATIVE JUDICIAL ACTIVISM IN THIS CASE?