The Courts, the Constitution and the Federalist papers

Foxfyre wrote:

If the court says Congress can't do it, what recourse does Congress have? For instance, if Congress passed a law defining marriage as between a man and a woman, and the Court said they could not do that under the equal protection clause, then Congress is screwed.

Congress can ignore the Supreme Court and hope the voters will tolerate this. I vaguely remember a bonmot by some 19th century president, I think Andrew Jackson: "The Supreme Court has made its decision, now let it enforce it". If the Supreme Court should find that gay marriage is a 14th amendment right, and if public opinion finds that as scandalous as Rush Limbaugh says it does, that would still be a recourse for Congress. What keeps the Supreme Court honest, and Hamilton mentions this in Federalist 78, is that it doesn't have direct access to force. That way it has to make some sense, in the view of the people.

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wandeljw wrote:

goodfielder wrote:
Have American courts been using European (continental Europe I mean) judgements to inform their decisions or have they merely been referring to common law jurisdictions? Or am I correct in assuming that there is some sort of push by US legislators to closet American jurisprudential thinking from any "outside" influences - such as contemporary common law decisions?

There were at least two recent decisions where the U.S. Supreme Court used European law as part of its rationale. Early this year in Roper v. Simmons, the court cited international legal trends against juvenile death penalties. In 2003, the court struck down a Texas sodomy law in Lawrence v. Texas. That decision relied in part on an opinion from the European Court of Human Rights.

In Roper v. Simmons, the U.S. Supreme Court looked at our country's death penalty statistics. Three-fourths of the states do not execute minors. Of the remaining one-fourth of the states that do execute minors, they do so only rarely. The Court could easily conclude that there existed a national consensus against inflicting the death penalty on minors and determine that the practice violated OUR constitutional prohibition against cruel and unusual punishment. Thereafter, the Court noted that other civilized nations in the world had come to the same conclusion. This does not mean that the Court relied on the laws of other countries as a basis for its ruling.

http://laws.findlaw.com/us/000/03-633.html

Quote:

III. A.

The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. . . .

As in Atkins, the objective indicia of consensus in this case--the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice--provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U. S., at 316.

III. B.

A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. . . .

IV.

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." 356 U. S., at 102-103 (plurality opinion) . . .

The ruling was clearly based on the Court's interpretation of the Eighth Amendment.

In the Lawrence v. Texas case, the U.S. Supreme Court did NOT rely in part on an opinion from the European Court of Human Rights. You have to read the entire case and put the reference within context.

You have to remember that the Court, in Lawrence v. Texas, overruled the holding in Bowers v. Hardwick, 478 U.S. 186 (1986). In Hardwick v. Bowers, the Supreme Court held that state laws criminalizing sodomy did not violate the Constitution. The majority opinion, authored by Justice White, claimed that proscriptions against consensual sodomy have "ancient roots."

http://laws.findlaw.com/us/478/186.html

If you read the case (link above), you will see that Justice White presented a brief history of criminal sodomy laws. In Chief Justice Burger's concurring opinion, the Chief Justice again noted that the proscriptions against sodomy have very "ancient roots." The Chief Justice also presented a brief history.

In Lawrence v. Texas, the Supreme Court stated the following:

Quote:

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. . . .

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers.

The Court then said:

Quote:

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. . . .

In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring). . . .

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

If you read the entire case, you will see that the Court did not rely on European laws -- the Court was demonstrating that inaccuracies of the historical premises relied upon by the majority and concurring opinions in the Bowers case.

The Court clearly based the decision in Lawrence v. Texas on the Due Process Clause of the Fourteenth Amendment: The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

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Thomas wrote:

If the Supreme Court should find that gay marriage is a 14th amendment right, and if public opinion finds that as scandalous as Rush Limbaugh says it does, that would still be a recourse for Congress. What keeps the Supreme Court honest, and Hamilton mentions this in Federalist 78, is that it doesn't have direct access to force. That way it has to make some sense, in the view of the people.

Note:

The First Amendment does not state: The people shall have freedom of speech. The First Amendment does not confer any rights.

Rather, the First Amendments states: Congress shall make no law abridging freedom of speech. The First Amendment prohibits government from enacting laws that would

Most people don't understand the difference, but the difference is substantial. People do not have a First Amendment right to freedom of speech; rather their freedom of speech (a right they already had and formed government to protect) is SECURED against abridgment by the government pursuant to the First Amendment.

Similarly, the Fourteenth Amendment does not confer any rights. Again, it is a prohibition upon government (STATE) action: No state shall deprive any person of life, liberty, or property without due process of law nor deprive any person of equal protection under the laws.

The right to marry is a fundamental right implicit in our concepts of liberty. The Constitution does not confer liberty upon us -- we already had liberty and we the people established the Constitution to SECURE the blessings of liberty to ourselves and our posterity.

Therefore, it is incorrect to suggest that marriage would be a foureenth amendment right. The proper way to phrase it would be as follows: the right to marry is secured from state deprivations by the Fourteenth Amendment.

I have no doubt that the Supreme Court has the power to enforce its rulings.

After the ruling in Brown v. Board of Education, Governor George Wallace of Alabama physically blocked the state university’s entrance before stepping aside in the face of federal force. Wallace used the state militia to block the court-ordered desegregation of public schools in Birmingham, Mobile, and Tuskegee, and he encouraged local extremists to wage “a boisterous campaign” against desegregation. Threatened with judicial contempt citations, Wallace eventually relented.

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That's interesting. Adds to my meagre knowledge which is good, thank you.

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I am grateful that Debra Law clarified the opinions in Roper v. Simmons and Lawrence v. Texas. The decisions themselves were based on U.S. law only. However, the secondary use of international opinion in the rationale of those 2 decisions was heavily criticized by conservatives. I would be interested to see Debra Law's opinion on the proposed "Constitution Restoration Act". I think at least part of the proposed act was motivated by conservative criticism of the court's use of international opinion.

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And indeed wandeljw my wider reading led me to some really interesting articles by Justice Ginsburg. I was very pleased to read that the US Supreme Court doesn't isolate itself from its brethren around the world. Most heartening. If liberty is to spread then surely the most famous written doctrine of liberty should be permitted to at once influence and be influenced by other jurisdictions.

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Thomas writes:

Quote:

Congress can ignore the Supreme Court and hope the voters will tolerate this. I vaguely remember a bonmot by some 19th century president, I think Andrew Jackson: "The Supreme Court has made its decision, now let it enforce it". If the Supreme Court should find that gay marriage is a 14th amendment right, and if public opinion finds that as scandalous as Rush Limbaugh says it does, that would still be a recourse for Congress. What keeps the Supreme Court honest, and Hamilton mentions this in Federalist 78, is that it doesn't have direct access to force. That way it has to make some sense, in the view of the people.

You are right in saying Congress can ignore the Supreme Court but they do it at their own peril. When push comes to shove if Congress does ignore the Courts then we have a constitutional crisis and our only hope is that the people come out on the side of the constitution.

My personal feelings on any and all court rulings is that they should be followed and if disagreed with then amend the constitution. It is the only way to save the republic.

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BBB
The Supreme Court would be out of step with US history if it ignored legal decisions from abroad.

Common Law is the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the US except Louisiana.

As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is law distinguished from law created by legislatures, comprises the principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs; and in this sense, the ancient unwritten law of England. As distinguished from ecclesiastical law, it is the jurisprudence administered by purely secular tribunals.

Federal Common Law is a body of decisional law developed by the federal courts untrammeled by state court decisions.

Common law is also distinguished from statutory law, admiralty law, military law, international law Roman law (classical civil law), civil law that is based on the Code Napoleon, and other legal systems.

Much of the US Constitution is based upon European Common Law and government theory established during the Era of Enlightenment in England and France. The main difference is the separation between Church and State accepted by the Federal government following the efforts by Jefferson and Madison in Virginia legislative conflicts.

BBB

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goodfielder
[quote="goodfielder"]And indeed wandeljw my wider reading led me to some really interesting articles by Justice Ginsburg. I was very pleased to read that the US Supreme Court doesn't isolate itself from its brethren around the world. Most heartening. If liberty is to spread then surely the most famous written doctrine of liberty should be permitted to at once influence and be influenced by other jurisdictions.[/quote]

Justice Ginsberg is probably the smartest justice on the court. She was the only justice who correctly identified the actual violation of the constitution by the court majority in Bush vs Gore during the 2000 election. I will look it up for you and post it ASAP.

BBB

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Re: goodfielder
[quote="BumbleBeeBoogie"][quote="goodfielder"]
Justice Ginsberg is probably the smartest justice on the court. She was the only justice who correctly identified the actual violation of the constitution by the court majority in Bush vs Gore during the 2000 election. I will look it up for you and post it ASAP.

BBB[/quote]Surely the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal law than to a state high court's interpretation of its own state's law.That recognition has sometimes prompted us to resolve doubts about the meaning of state law by certifying issues to a State's highest court, even when federal rights are at stake. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court."). Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification devise to afford state high courts an opportunity to inform us on matters of their own State's law because such restraint "helps build a cooperative judicial federalism." Lehman Brothers, 416 U.S., at 391.Rarely has this Court rejected outright an interpretation of state law by a state high court.

The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state court interpretations of state law. Ante, at 5 ("To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."). The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature's enactments. See U.S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to States of a "Republican Form of Government," U.S. Const., Art. IV, §4, Article II can hardly be read to invite this Court to disrupt a State's republican regime. Yet The Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court's construction of state laws in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) ("Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign."); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937) ("How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.").2 Article II does not call for the scrutiny undertaken by this Court.

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. Even if there were an equal protection violation, I would agree with Justice Stevens, Justice Souter, and Justice Breyer that the Court's concern about "the December 12 deadline," ante, at 12, is misplaced. Time is short in part because of the Court's entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process. More fundamentally, the Court's reluctance to let the recount go forward-despite its suggestion that "[t]he search for intent can be confined by specific rules designed to ensure uniform treatment," ante, at 8-ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process.

Equally important, as Justice Breyer explains, post, at 12 (dissenting opinion), the December 12 "deadline" for bringing Florida's electoral votes into 3 U.S.C. § 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha[d] not been regularly given." 3 U.S.C. § 15. The statute identifies other significant dates. See, e.g., §7 (specifying December 18 as the date electors "shall meet and give their votes"); §12 (specifying "the fourth Wednesday in December"-this year, December 27-as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. §15.

The Court assumes that time will not permit "orderly judicial review of any disputed matters that might arise." Ante, at 12. But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.

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wandeljw wrote:

I am grateful that Debra Law clarified the opinions in Roper v. Simmons and Lawrence v. Texas. The decisions themselves were based on U.S. law only. However, the secondary use of international opinion in the rationale of those 2 decisions was heavily criticized by conservatives. I would be interested to see Debra Law's opinion on the proposed "Constitution Restoration Act". I think at least part of the proposed act was motivated by conservative criticism of the court's use of international opinion.

In comparison to other countries, our history is relatively short. Our founders, however, did not create a government on the basis of a blank slate. Therefore, in countless of Supreme Court cases, the Justices have critically examined traditions and practices, traced their "ancient roots," and made determinations whether the reasons for those traditions and practices have any continuing relevancy or legitimacy in our country today.

In an older case, Myra Bradwell v. Illinois, the State of Illinois recognized that Mrs. Bradwell was qualified to practice law, but denied her a license because she was a woman. One Justice wrote separately to explain that the state had a legitimate reason for treating men and women differently with respect to occupational or professional licensure because a woman, historically and traditionally, is required to fullfill the benign and noble role as wife and mother -- with her husband as her protector and head of the household. By today's standards, the opinion was extremely sexist and condescending towards women.

Increasingly, we are seeing judicial recognition of the expansive breadth of the inalienable right to liberty. As stated in Lawrence v. Texas:

Quote:

The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). . . .

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry."

We have finally reached a point in our human development where we are finally realizing that old traditions and practices cannot be allowed to continue when they serve no purpose other than to perpetuate moral disapproval and oppression.

The majority of the people have the right to believe anything they want -- even if their beliefs are based on outmoded practices or traditions. However, the majority of the people may not use the power of the State to impose their beliefs on the rest of society through the operation of the laws. Moral disapproval alone is NEVER a sufficient basis for denying or disparaging the liberty of others. As the Supreme Court succinctly stated, "Our obligation is to define the liberty of all, not to mandate our own moral code."

Of course, the moral majority is pissed off because they are not allowed to impose their beliefs on society as a whole. They don't understand that we are not a pure democracy; they do not understand what it means to live in society where every individual is guaranteed a republican form of government; and they don't understand why they can't impose their traditions (of oppression and moral disapproval of others) on society as a whole.

Because they are pissed off, they misrepresent the proper role of the judiciary in our government. They accuse the courts of "judicial activism" when it is clear that the courts are just doing their jobs: Defining the liberty of all. The mob does not rule when the mob acts to deny and deprive others of their liberty interests. This is a simple concept that the moral majority (the mob) does not understand or appreciate.

They don't understand why they can't impose their religious beliefs on others and place monuments to the Ten Commandments on public grounds or post copies of the Ten Commandments on the walls of public schools and courthouses. They don't understand why they can't impose their moral disapproval of child offenders by inflicting the death penalty upon them. The don't understand why they can't impose their moral disapproval upon homosexuality by criminalizing the private sexual conduct between two consenting adults. They don't understand why they can't impose their moral disapproval upon homosexual couples by depriving them of the fundamental right to marry.

The list goes on and on. But the past is the key to the future. Over time, the moral majority has lost some ability to impose their moral disapproval upon society as a whole. Their traditions of exclusion and oppression are beginning to fall. In Brown v. Board of Education, their tradition of racial segregation was ruled unconstitutional. In Loving v. Virginia, their tradition of safeguarding the "purity" of the white race through denying blacks the right to marry whites was declared unconstitutional. In Roe v. Wade, their control over a woman's body and her procreation abilities lost its foothold.

The proposed "Constitution Restoration Act" is clearly a reactionary measure of the moral majority that blames the judicial branch for its loss of control and watered down ability to impose their beliefs on others and to oppress minorities. The moral majority wants to define the liberty of all and impose a moral code on others through the power of the state. The Court has determined that it is the Court's duty to define the liberty of all. So, the moral majority accuses the judiciary of "legislating from the bench."

The moral majority's message:

"WE, the MAJORITY, want to impose a moral code on society; we want to use the power of the state to do so through the enactment of laws that prohibit the things we despise; and gosh darn, this is a democracy and we have the RIGHT to impose our will on others through legislation -- and when the courts rule that our legislation is unconstitutional -- those damn activist judges are legislating from the bench -- those bastards, BIND THEIR JUDICIAL POWERS AND IMPEACH THEM!"

The proposed "Constitution Restoration Act" is clearly unconstitutional.

The Constitution does not stand for the proposition that "WE, the MAJORITY" do hereby ordain and establish this Constitution to SECURE for ourselves and our posterity the right to oppress minorities and to impose a moral code on society as a whole. That's absurd. But, that's exactly what the proposed "Constitution Restoration Act" is all about.

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Thank you, Debra! (I was hoping that you would affirm my feeling that the proposed act itself is unconstitutional. Many of us appreciate your explanations.)

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You're welcome, wandeljw.

I am a strong advocate of the inalienable rights to life and liberty. I do not believe that our government has any business in proscribing or regulating conduct unless that conduct harms or injures another person's inalienable rights to life or liberty.

A sense of moral disapproval alone is never a legitimate reason for denying or disparaging another person's inalienable rights. A sense of moral superiority alone is never a legitimate reason to impose one's beliefs upon another.

Personally, I view the majority of the people of this country as careless, apathetic, illogical, hypocritical SHEEP that blindly follow their equally careless, apathetic, illogical, hypocritical SHEPARDS to the slaugherhouses where all of our inalienable rights are being eviserated. I don't know what I want to do more: slap them or feel sorry for them.

But, since they are dragging the rest of us with them and making a mockery of our country, I think I am more inclined to slap them.

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BBB
Ok, now, everyone together: SLAP!

BBB

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I think Debra and I both can probably agree with this one. Smile

Lay Off Our Judges
Republicans and Democrats alike, show some respect for our independent judiciary.

BY THEODORE B. OLSON
Saturday, April 23, 2005 12:01 a.m. EDT

A prominent member of the Senate leadership recently described a Supreme Court justice as "a disgrace." An equally prominent member of the leadership of the House of Representatives on the other side of the political aisle has characterized another justice's approach to adjudication as "incredibly outrageous." These excoriations follow other examples of personalized attacks on members of the judiciary by senior political figures. So it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts.

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

Every day, thousands and thousands of judges--jurists whose names we never hear, from our highest court to our most local tribunal--resolve controversies, render justice, and help keep the peace by providing a safe, reliable, efficient and honest dispute resolution process. The pay is modest, the work is frequently quite challenging, and the outcome often controversial. For every winner in these cases, there is a loser. Many disputes are close calls, and the judge's decision is bound to be unpopular with someone. But in this country we accept the decisions of judges, even when we disagree on the merits, because the process itself is vastly more important than any individual decision. Our courts are essential to an orderly, lawful society. And a robust and productive economy depends upon a consistent, predictable, evenhanded, and respected rule of law. That requires respected judges. Americans understand that no system is perfect and no judge immune from error, but also that our society would crumble if we did not respect the judicial process and the judges who make it work.

We have recently witnessed tragic violence against judges, their families and court personnel in Chicago and Atlanta. These incidents serve as reminders of how vulnerable the judiciary is to those who may be aggrieved by judges' decisions. Violence and intimidation aimed at judges is plainly intolerable; all of us can, and should, be unequivocally unified on the proposition that judges must be protected from aggrieved litigants and acts of terrorism. The wall between the rule of law and anarchy is fragile; if it is penetrated, freedom, property and liberty cannot long endure.

This is not to say that some judges don't render bad decisions. Arrogant and misguided jurists exist, just as such qualities may be found in the rest of the population, and our citizens and elected representatives are fully justified in speaking out in forceful disagreement with judges who substitute their personal values or private social instincts for sound jurisprudential principles. But the remedies for these aberrations consist of reasoned, even sharp, criticism, appeals to higher courts, and selection of candidates for judicial positions that respect limits on the roles of judges.

But, absent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with--and may dislike even more--adjudications made by presidents or this year's majority in Congress.

Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems. If a judge's decisions are corrupt or tainted, there are lawful recourses (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with--and intimidation of--the judicial process. And there is no logical stopping point once this power is exercised.

Which member of Congress, each with his or her own constituency, would ask what questions of which judges about what decisions? Imagine the kinds of questions asked routinely in confirmation or oversight hearings. How can those questions be answered about a pending or decided case? And what if a judge refused to testify and defend his reasoning about a particular decision? Would an impeachment or prosecution for contempt of Congress follow? Either would be unthinkable. Federal judges are highly unlikely to submit to such a demeaning process and, if push came to shove, the public would undoubtedly support the judges.

No discussion of the judiciary should close without reference to the shambles that the Senate confirmation process has become. It does no good to speculate about how or when the disintegration began, which political interest has been the most culpable, or the point at which the appointment of judges became completely dysfunctional. That sort of debate is both endless and futile. The only hope for an end to the downward spiral is for the combatants to lay down their arms; stop using judicial appointments to excite special-interest constituencies and political fund-raising; move forward with votes on qualified, responsible and respected nominees so that those who have the support of a majority of the Senate can be confirmed, as contemplated by the Constitution; and remove the rancor and gamesmanship from the judicial selection process.

We expect dignity, wisdom, decency, civility, integrity and restraint from our judges. It is time to exercise those same characteristics in our dealings with, and commentary on, those same judges--from their appointment and confirmation, to their decision-making once they take office.
http://www.opinionjournal.com/editorial/feature.html?id=110006597

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BBB
This is the first pronouncement by Ted Olson with which I agree. I applaud his breaking ranks with his party to defend the Judiciary against attacks by the Religious Right.

BBB

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Actually I think he was rapping the knuckles of both sides in the areas where they were wrong and supporting both sides in the areas where they are right.

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Here's another one that pretty well identifies the partisan stupidity out there and pulls things back into perspective, and it does address some of the concerns I have had.

Judicial Insanity
By Charles Krauthammer
Friday, April 22, 2005; Page A17

Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?

DeLay is wrong about the Schiavo case. I think the law was a bad law, but the trial judge applied it properly. I think the judge assessed the medical evidence incorrectly, but that is a matter of interpretation, not of judicial impropriety or denial of due process. There is nothing here with which to threaten this judge or the judicial system.

But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between "some recent episodes of courthouse violence" and judicial activism -- as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system.

Let us have a bit of sanity here. One of the glories of American democracy is the independence of the judiciary. The deference and reverence it enjoys are priceless assets. The Supreme Court is the only institution that could have ended the Bush-Gore fiasco of 2000 with the immediacy, finality and, yes, legitimacy that it did. (True, liberals, who for half a century employed judicial fiat to enact their political agenda, have been whining for five years about this particular judicial exercise. But the critical point is that, whine or not, the ruling was accepted as law.) Moreover, and more generally, judicial independence and supremacy are necessary checks on the tyranny of popular majorities.

Have that independence and supremacy been abused? Grossly. What other advanced democracy would radically legalize abortion by judicial decree rather than by democratic will expressed through legislatures or referendums? What sane democracy allows four unelected robed eminences in Massachusetts to revolutionize the very definition of marriage, the most ancient institution in society?

This is not just deeply undemocratic. It is politically crazy. Democracies work as stable social entities because when people are allowed to settle issues themselves by debate and ballot, they are infinitely more likely to accept the results when they lose. To deny them that participation is to risk instability and threaten social peace.

It was Ruth Bader Ginsburg who said that Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." Whenever such an obvious sociological truth is pointed out, proponents of judicial imperialism immediately resort to their trump card: Brown v. Board of Education and the courts' role in ending Jim Crow.

But Brown was different. The race cases were cases of a disenfranchised citizenry. The representative branches of government were legitimately superseded because they were not representative. Millions of blacks could not vote. Millions of blacks could not participate in civic life. The courts had to act to end this aberration and injustice, and, to their glory, they did.

And they have lived off that glory ever since. The prestige the courts inherited from Brown fueled their arrogant appropriation of legislative power in areas radically different and suffering no disenfranchisement -- abortion, gay rights, religion in the public square. For decades they have been creating law, citing emanations from penumbras of the Constitution visible only to their holinesses.

This is all true and deeply depressing. But the answer is not to assault the separation of powers. Certainly not to empower Congress to regulate judicial decision-making by retroactively removing lifetime appointees. The non-deranged way to correct the problem is to appoint a new generation of judges committed to judicial modesty.

Yet the recent eruptions of DeLay, Cornyn and some of their fellows may, like FDR's court-packing overreaching in 1937, have a salutary effect after all -- scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.
http://www.washingtonpost.com/wp-dyn/articles/A7897-2005Apr21.html

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The Courts, the Constitution and the Federalist papers

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