Where should the USSC look for answers?

Tartarin wrote:

They believe that the USSC and the Constitution are (or should be) considered concrete and immutable...

FWIW, I do not believe this at all, in fact I know it is not true. We have a process by which we may amend the Constitution when we need to change it to keep up with the times or correct some perceived error or omission therein. However, I do not hold with those who suggest that the "strength" of the Constitution stems from the willingness of some to ignore its text when they find that text inconvenient to their desired goals for society.

I suspect that most of those whom you claim think it immutable, likewise recognize the reality that it was intended to change with the times, and by amendment.

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Set -- I'm lousy at getting to the heart of legal opinions, especially those written a hundred or more years ago! So I don't know. I just know I've been getting an education here... Keep on truckin'!

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Setanta wrote:

I wasn't so much saying that Scrat, as that it would be nearly impossible to demonstrate a case of "extra-constitutional" judicial activism, and absent such a case, any complaints are moot points. This site, is of course, a place for mooting such points, so i don't criticize the thread for any inherent faults. Additionally, i would note that i know of no way beyond either constitutional amendment, or re-writing statute to account for judicial objection, by which to circumvent the Court. I don't see this as a big problem, personally, as i have yet to see any cases which i would consider abusive on the part of the court.

Okay, now I'm really lost. Are you stating that the USSC is free to consider things outside the constitution itself in making their decisions, or are you not stating that? You comments above read to me as if you are just saying it would be impossible to prove they'd gone outside the Constitution--a point I find it hard to believe you mean since in at least two recent decisions (those mentioned in my citation) they not only looked beyond the constitution, but beyond US borders.

And I don't think anyone need worry about circumventing the court while the court is willing to circumvent the constitution for them.

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Can anyone tell me:

Is there anything in the Constitution that prohibits the Supremes from looking wherever they want to when making their decisions?

What constraints are placed on them by the constitution?

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You're asking the question I'd like an answer to, Frank!

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http://www.supremecourtus.gov/about/about.html

http://www.supremecourtus.gov/about/constitutional.pdf

These links confirm Setanta's statements on this. So, there is nothing that expressly limits the USSC to Constitutional judicial review, as I had thought. Since that is the case, I need to take a look at a couple of the decisions in question. If a justice simply cited the agreement of extranational laws in his or her decision (this is where we're leaning, and oh, by the way, they took the same decision in Borneo), I can see no harm therein, but if such were cited for their disagreement (here we've done X but in Borneo they do Y and I'm citing Borneo while writing in support of Y) I would be concerned about issues of sovereignty.

Thanks again to Setanta.

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Setanta wrote:

ok, you win, you're always right.

I'm glad to see we can agree on a common basis of understanding.

Setanta wrote:

So tell me, Joe, do you hold therefore, that there is no truth in any of what i wrote...

Certainly, much of what you wrote is correct, some of it is questionable, a few things are just plain wrong. Most importantly, you got the holding backwards: if you miss that, you miss the whole point of Marshall's opinion. Marshall didn't issue the writ because he ruled that Congress had no authority to make the law that authorized the writ. That's how Marshall established the court's authority to declare acts of Congress unconstitutional, and that's why Marbury v. Madison is so important.

Setanta wrote:

...or are you just exercising your penchant for attempting to show others up as often as possible, in order to preen your over-large ego?

Sometimes, it's difficult for even me to tell.

Setanta wrote:

I have observed that Joe is very fond of this sort of criticism, and there is certainly no love lost between us.

I can't imagine why you'd say that. I have nothing against you, Setanta, and we've managed to have civil discussions in other forums. Frankly, I find your recent hostility toward me completely baffling, but if you can point me to something that I've said that has gravely and unjustly offended you, I'd be happy to do what I can to correct it.

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joefromchicago wrote:

Setanta wrote:
...or are you just exercising your penchant for attempting to show others up as often as possible, in order to preen your over-large ego?

Sometimes, it's difficult for even me to tell.

That's not just funny, but it's a much needed breath of fresh air in here! ROFLMAO. Kudos Joe for that gem of self-effacing humor.

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Frank Apisa wrote:

Can anyone tell me:

Is there anything in the Constitution that prohibits the Supremes from looking wherever they want to when making their decisions?

Judges can look practically anywhere for arguments to support their rulings. But there's a difference between binding authority and persuasive authority. Courts are bound by their own decisions and the decisions of higher courts (in the case of the SCOTUS, of course, there is no higher court). The SCOTUS can overrule its previous decisions (as in, e.g. Brown v. Board of Education), but it does so only rarely. In most cases, the SCOTUS treats its previous decisions as binding, and it is obligated to follow those precedents.

A court can cite foreign court decisions, but it cites them only as persuasive. That is to say, the SCOTUS can cite a French or German judicial opinion, but only as a way of demonstrating that other courts elsewhere have faced a similar situation and have dealt with it in a manner that ought to be imitated (or avoided). Those foreign decisions, however, have no precedential effect: the court is not, in other words, obligated to follow those decisions (the only exception is English case law prior to July 4, 1776, which is treated as binding on American courts through the notion of "incorporation" of the English common law).

Frank Apisa wrote:

What constraints are placed on them by the constitution?

None. These constraints have been placed on the courts by the courts.

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Charges of judicial activism were, I believe, first made against the SCOTUS in its opinion on the Brown v. Board of Education case which, as joe pointed out, overturned its own precedent in its opinion on Plessy v. Ferguson. Other criticisms of its opinion in the case have cited lack of judicial neutrality and overreliance on allegedly flawed social science findings (i.e. extra-constitutional bases).

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joefromchicago wrote:

A court can cite foreign court decisions, but it cites them only as persuasive. That is to say, the SCOTUS can cite a French or German judicial opinion, but only as a way of demonstrating that other courts elsewhere have faced a similar situation and have dealt with it in a manner that ought to be imitated (or avoided). Those foreign decisions, however, have no precedential effect: the court is not, in other words, obligated to follow those decisions (the only exception is English case law prior to July 4, 1776, which is treated as binding on American courts through the notion of "incorporation" of the English common law).

This is good and useful information. I am more comfortable with the notion of citing an extranational decision in the "persuasive" sense as you describe it above. I think most or all of my angst over this stems from a concern that such were being cited or might in the future be cited as a "binding" precedent.

Thanks for sharing this Joe.

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It is increasingly difficult for any country to live an isolated life, politically, socially, culturally, economically. So it would be almost impossible for American courts to overlook or not be influenced by decisions in other countries. And we'd be very stupid to do so.

Last night, on NPR, there was yet another interview with the Yale professor who has written a book pointing out that each country has its own idiocies and its own triumphs, and that we would do well (as would other countries) to use the best of what the other has put in place. He cites European and American toilets. European toilets flush much better because they have an efficient siphon system while ours still limp along with that damn little gizmo which doesn't close properly and has to be replaced at regularly. On the other hand, American plumbing in general is much better designed than British plumbing. Why doesn't each adopt the best of the other as it builds new housing?

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Tartarin - One might argue that it would be almost impossible for the USSC to ignore public opinion on an issue, but that is precisely what they are supposed to do. So the fact that it might be hard for a court to not consider X, doesn't mean that they should consider X.

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I doubt we'd have had many of our most important moments of social progress had social pressure not a) brought issues to the Court, and b) been felt by the Court.

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Tartarin wrote:

I doubt we'd have had many of our most important moments of social progress had social pressure not a) brought issues to the Court, and b) been felt by the Court.

I agree completely, only I see that fact as a very bad thing and what you call "important moments of social progress" I call devastating blows to the fabric of our nation.

The sad fact that the USSC has allowed itself to be swayed by public opinion does not mean that it should.

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The justices are people of their time and don't live in a vacuum (as hard as Scalia and Thomas have tried to).

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Scalia and Thomas peer out of the vacuum through the zipper.

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How many kids does Scalia have? I suspect his zipper is well-worn by now. As for Thomas, well...

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There are times the "strict constructionists" sound so sincere, I'm tempted to accept that they really mean what they say.

But I am usually able to come back to reality and take it for what it is -- rationalization of their pomposity. They seem to think that anything not in lock step with their kneejerk reactions is a threat to our nation and its institutions.

Ah...what the hell.

The strict constructonists are almost all conservatives -- and American conservatives have been on the wrong side of almost every important issue this country has ever faced.

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They're mostly strict re-constructionists who manage to turn a blind eye to what was written in The Federalist Papers among other documents which include many other personal writings of Jefferson, Adams, Madison, et al. Their conservatism is wrapped up in personal religious beliefs which they always have hoped would stave off critcism. They bluster and blunder their way through their denial of what the forefathers actually meant when writing the Constitution and the Bill of Rights.

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Where should the USSC look for answers?

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