United States Supreme Court Discussion Thread.

When did he say that? I thought the latest comment was that Bush would "deal with a vacancy when there is one", or something to that effect.

Kimball, as far as language is concerned, I would take 'deism' to mean the belief in a God who created the universe and nothing more. Merriam-Webster, for instance, defines deism as:

a movement or system of thought advocating natural religion, emphasizing morality, and in the 18th century denying the interference of the Creator with the laws of the universe.

Deism contrasts with theism, which is the belief in a personal God who does intervene in the world.

But I must confess my ignorance of "Christian Deism".

 

Evidentally, Thomas as CJ is simply a rumor floating around, nothing really substantiated beyond that.

Personally, I couldn't choose a more divisive figure as CJ. I'm not sure what the more liberal Senate members think, but I would think that Scalia would be a better choice in more peoples minds if Bush wants to go conservative.

 

You guys need to stop living in the past, contemporize man! (Hippie from the Simpson)

DM, screaming judicial activism from the top of your lungs does not make it so. Massachussetts may have overstepped its bounds IN YOUR OPINION, but try and remember one of the most important principles of our system of jurisprudence: Reasonable minds may differ.

Personally, at this point, you are all stuck with the common law. What many of you don't seem to realize or appreciate in your posts is that each Supreme Court decision can be seen as new law in a way. The Supreme Court only takes cases to resolve some quirk in the law or to at least give guidance on it.

To go back to a true originalist interpretation ignores 2 things: 1.) There is no such thing as a uniform understanding among Founders as to what the law means, and 2.) It would take an act of judicial activism greater than any other to simply declare 200 years of law invalid and go back to an almost French/Napoleonic way of looking at laws.

The Supreme Court will often make rulings that are contigent, rulings that can be modified or reviewed later.

Anyway, I think Spector did himself a disservice because he put a big ole target on his head from the conservatives right-wing moralist in his party.

However, I expect to see more of this in the GOP, they all united for Bush, but they are not going to all unite to push through a fanatic conservative agenda.

As far as abortions go, you were better off with Clinton, who truly did keep abortions safe, legal, and rare, much rarer than George Bush.

 

If you want a fairly good explanation I've found on Christian Deists, then you can look here.

Kimball Kinnison

 

As a side note, I'd want Scalia over Thomas only because Scalia will probably die sooner. THomas and Scalia both scare me, these are two guys who make Rehnquist look like a bonafied moderate.

Of course, putting Thomas up there would give Bush quite a racial legacy, having appointed blacks to the three of the highest positions of government.

 

If I misrepresented "Christian Deism", then I apologize.

But Kimball, that wasn't really my point. My point was that it is wrong to insist that every legal decision that isn't rendered in such a way that modern-day conservatives believe the Framers would have agreed with should be abrogated.

I'm with OBM on this one. In America, we have a tradition of judicial review, and attitudes do change with the times. Some members of the Senate feel that the only valid way to interpret the law is to look at the past, and I disagree with this. I may have misquoted the fundamentals of Christian Deism by accident, but many of the very same lines in the opposite argument keep coming up on purpose. One of these is that same insistence that only how "the Framers would have done it" is valid. I don't agree. In many instances, the law doesn't agree.

How do we find a middle ground?

I doubt the more liberal members of the Supreme Court would see things the way that the Framers would have seen them. As respected lawyers and jurists, how would you justifiably present your arguments to them?

By the way, the politically expedient thing to do would be to place O'Connor in the Chief Justice spot, but Bush won't do it. I am now in favor of him continually pushing hard to the right, as the harder he pushes, the stronger the backlash will be.

It will come, believe me.

Peace,

V-03

 

In defence of (1) Justice Scalia in particular, and (2) originalists in general, here's a few Words of Wisdom from the justice himself:

Detention Without Trial: ?The very core of the liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.? Hamdi v. Rumsfeld (2004) (Scalia J., dissenting from the Supreme Court?s ruling giving the President sweeping powers to detain American citizens outside the ordinary criminal process as ?enemy combatants?)

Trial By Jury: ?The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the unanimous suffrage of twelve of his equals and neighbours, rather than a lone employee of the State.? Blakely v. Washington (2004) (Scalia J., writing for the Court in upholding a criminal defendant?s right to have facts that enhance his maximum sentence found by a judge rather than a jury)

The Right To Confront Witnesses: ?Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.? Maryland v. Craig (1990) (Scalia J., dissenting from the Supreme Court?s decision depriving a defendant of the right to confront child witnesses in court in sexual abuse cases)

Freedom of Speech: ?[The state] has no ... authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.? RAV v. St Paul (1992) (Scalia J., writing for the Court in invalidating an ordinance that prohibited certain actions on the basis of their intended message)

Civil Rights: "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design." Crawford v. Washington (2004) (Scalia J., writing for the Court in disallowing the admission of written witness statements against a defendant unless a prior opportunity for cross-examination has been provided)

Flag Burning: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989) (Brennan J., writing for a majority of the Court, Scalia included, in invalidating a prohibition against burning the American flag)

These quotes should be food for thought for anyone who thinks that originalism is a solely conservative or right-wing position, or is inconsistent with support of civil rights.

 

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Where was this particular line of thought in Lawrence v Texas, branthoris, or are we going to back to the argument that it's ok to "be" gay, just so long as one does not "act" gay?

What about that? The prohibition of consensual sex between adult males in the privacy of their own home being "ok" because society finding it offensive or disagreeable is not "ok"?

He defends the right to speech, but not the right to free expression in action, which would seem, at least to me, to be just as important.

Seems like a double standard to me.

Peace,

V-03

 

Branthoris, about your examples, I guess I'd like to see some evidence that these are actually originalist arguments. Simply saying "this is how the framer's intended it to be" is merely arguing from a conclusion, absent concrete evidence.

 

And outside of historical example, you can have no such evidence, as the Founding Fathers have been dead for centuries.

Peace,

V-03

 

Vaderize03, with all respect, I do not think that sexual activity has anything to do with freedom of speech (to which the quotated passage relates). A prohibition on homosexual intercourse does not target it because of its expression of an offensive idea, but because of society's belief that, as conduct, it is immmoral and unacceptable. However erroneous such a belief may be, it does not relate to the freedom of speech.

The reason Scalia (as would any originalist) "defends the right to speech, but not the right to free expression in action" is that the former is specifically safeguarded by the First Amendment; the latter is not. But this does not detract from the point that I'm trying to make: that originalism does not necessarily involve curtailment of civil rights. It offers no protection for newfound rights, such as the right to homosexual intercourse, but it offers heightened protection for the rights specifically protected in the constitution.

You are free, of course, to disagree with this approach. But it should follow that originalism is neither a liberal nor conservative position; in many situations, it produces results that would satisfy the former more than the latter.

Jabbadabbado, I will deal with only one of my examples for brevity's sake.

Civil Rights: "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design." Crawford v. Washington (2004) (Scalia J., writing for the Court in disallowing the admission of written witness statements against a defendant unless a prior opportunity for cross-examination has been provided)

The opinion in Crawford, a hugely important decision as far as the right to confront witnesses is concerned, rested entirely upon an analysis of the Sixth Amendment's original meaning. The full opinion is available here, but, in brief, it begins by noting that the "Constitution's text does not alone resolve" the issue, and the Court "must therefore turn to the historical background of the Clause to understand its meaning". The opinion proceeds to examine the English common law prior to the Founding, followed by colonial history, the history of the proposal of the Amendment itself, and relevant early state-court decisions. From all this material, it concludes that "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination", and hence considerably expands the rights of criminal defendants.

 

I think there was 4th amendment arugment in Lawrence, wasn't there?

Come on Branthoris, do you really think a state could pass a law banning heterosexual marriage and have it stand up in open court?

Do you think that the laws on the books prohibiting oral sex could EVER be held up in court today?

 

Obi-Wan McCartney, the answer to your point about heterosexual marriage is that no state is ever going to ban heterosexual marriage, so there is absolutely no need to have the federal courts protect us from such a ban.

As far as oral sex is concerned, it is, again, very unlikely to be under threat from the democratic process in this day and age, so a judicial backstop simply isn't necessary.

 

Ah, but multiple states do proscribe oral sex, although the laws are rarely ever enforced.

If a law exists (and therefore is technically enforceable) but ignored, is a "judicial backstop" still unnecessary?

Peace,

V-03

 

That's the point Branthoris, if hetero sex or oral sex DID go before the Supreme Court, pre-lawrence, do you really think they would say the states are within their rights?

It was constitutional argument, so I think the Court was justified in Lawrence anyway.

 

The way I see it, it's not about "rights" at all, but liberty.

By my definition, liberty is the ability to pursue hapiness within one's own bounds and views of the world around them, with whomever they please, as long as they are not harming others. This viewpoint is probably politically libertarian in nature, but I think you understand the point.

Liberty protects dignity. Liberty protects choice. Liberty is (by my definition) the protection of the right of the individual to self-determination free from tyranny, even the tyranny of the majority.

The real argument here, as with many other decisions (such as Roe), is not whether or the court has granted special "rights", but whether or not the concept of liberty is sufficient a penumbra to prevent intrusion into the private lives and actions of individuals minus a compelling state interest. Conservative judicial philosophy oftentimes trumpets states' rights on these issues, while ignoring the very real normative debate that the liberty enshrined in the federal Constitution may very well protect the individual from any unreasonable state intrusion into their private lives.

In the majority opinion for Lawrence, it was written that "....in this country there is not a tradition of the state being omnipresent in the home.....and certainly not the bedroom...."; this embodies the heart of the point that I am trying to get across.


The majority may find things like abortion and gay sex offensive, but the right to engage in such actions (within reason) is a matter of individual liberty, and not just "rights". The Supreme Court has established a precedent of defining liberty, and I believe that this is well within their bounds.

Peace,

V-03

 

I wish people would stop lumping anti-homosexuality and anti-abortion together. They are really two completely different things.

 

From a purely legal standpoint, arguments supporting the two can be easily lumped together.

Peace,

V-03

 

No they can't. One cause rests on getting the law to acknowledge the rights of another. The other cause rests on getting the law to deny rights.

 

No, they are both about protecting rights. One is about protecting homosexual rights, the other is about protecting human rights.

 

Obi-Wan McCartney, Lawrence tells us that a ban on oral sex would have been struck down 5-to-4 at any point since 1994, when Breyer was appointed (presuming, of course, that the justices were ready at such a point to take the step of overruling Bowers v. Hardwick, which would dictate precisely the opposite result).

A ban on 'ordinary' sex outside of marriage would have been invalidated by at least the same margin, possibly with O'Connor joining the majority (while the historical analysis of Bowers would apply with equal force to a law against oral sex, a sex-outside-of-marriage prohibition would be on shakier ground).

A ban on 'ordinary' sex inside marriage could well be struck down unanimously. Justice Scalia has, on occasion, called "substantive due process" an "oxymoron", but in Planned Parenthood v. Casey, in an opinion joined by Thomas and Rehnquist, he indicated that he would still apply "rational basis scrutiny" to state measures. Since traditional sexual morality has seen marital sex as perfectly okay, finding a rational basis for a law against marital intercourse could be difficult indeed.

But I don't really see where you're going asking me these hypothetical questions. Do I think that anything in the Constitution, originally understood, prevents a state from banning any and all sexual activity it chooses to? No.

Jediflyer, same-sex marriage (i.e. whether it should be recognized) is a different issue to "liberty", but homosexual intercourse, along with abortion (i.e. whether they should be banned) is definitely a liberty issue.

V-03, your analysis of liberty issues is certainly very interesting, and if it were applied to political matters, I probably would agree with it. But as far as the courts are concerned, we still come down to two fundamental issues: (1) How do judges determine which incursions into liberty are justified, and which are not, except by reference to personal opinion? (2) If, as a result, the courts invalidate laws that the Framers would have upheld, where does their expertise and authority to define "liberty" arise from?

 

Jediflyer, same-sex marriage (i.e. whether it should be recognized) is a different issue to "liberty", but homosexual intercourse, along with abortion (i.e. whether they should be banned) is definitely a liberty issue.

Yes, its a liberty issue, but abortion also is a human right's issue when you consider the fetus. I am all for homosexuals having the right to engage in intercourse or even to get married. However, there is definitely another factor in the abortion debate that can not be compared to the homosexual debate.

In other words, the abortion debate is the homosexual debate + 1. That extra 1 is being ignored by everyone who constantly equate the two.

 

(1) How do judges determine which incursions into liberty are justified, and which are not, except by reference to personal opinion?

I believe this was addressed in Lawrence, with the phrase "evolving standards of decency reflecting a changing society", or something to that effect.

In truth, there is at least some degree of personal opinion that comes into every decision in the courts. Mr. Bush insists that there will be no "litmus test" on abortion, but all that tells me is that his judicial nominees will be individuals who are convinced the framers would never have allowed abortion to exist and therefore, as self-proclaimed "strict constructionists", would have no choice but to abrogate Roe v Wade. I find that position laughable, because they are not about to convince me that on some level, they are not personally opposed to abortion and that their legal "justification" for their position doesn't jive with their own personal or religious beliefs.

I have great respect for your consistency into adherence to the law, branthoris, I am just weary of those in this country who claim to uphold such principles in the absence of personal opinion. I think personal opinion comes very much into play here, on both sides of the hot-button issues.

(2) If, as a result, the courts invalidate laws that the Framers would have upheld, where does their expertise and authority to define "liberty" arise from?

Again, I would answer that things have changed since the Framers were around, and that the modern-day application of the Constitution reflects those changes. Their experiences and opinions are going to come into this; I wish people would stop pretending that they don't, or that only "liberal" judges use their "opinions" to "make law". Conservative judicial re-activism is as potent as "liberal activism" and has the same basis in interpretation of the law to fit one's own biases as the "liberal" variety.

How to solve this problem? I don't see how we can, unless we are willing to have computers decide matters of law. Perhaps only an emotionless machine will be perfectly capable of upholding the law, of applying reason free from passion (quote Legally Blonde).

Good chat, though .

Peace,

V-03

 

"I wish people would stop pretending ... that only "liberal" judges use their "opinions" to "make law". Conservative judicial re-activism is as potent as "liberal activism" and has the same basis in interpretation of the law to fit one's own biases as the "liberal" variety."

I certainly agree with this. And I do fear that Bush will not appoint originalists (as he has effectively promised to do), but rather judges who really are conservative activists. Being a liberal in political terms, I would rather have the law, if it is to be reinvented, reinvented in a liberal direction.

We'll have to see. I'm certainly not naive enough to believe that Bush's apparent endorsement of "strict" interpretation is motivated by anything other than political gain.

 

I thought it was time to up this, given the turn that the "juvenile executions" thread has taken.

So where were we back in November?

Position A: The U.S. Supreme Court is sending the country to hell in a handbasket.

Position B: No it isn't.


Ah yes, that's right.