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History Forum / General / General Topics / December 2003Best & Worst Supreme Court Justices
"Good" and "bad" are subjective opinions, though ye objectivists/Randians would surely disagree. C-SPAN today repeated a pre-Clinton era interview with Senator Paul Simon, Democrat of Illiniois, who very recently died. Simon was not an attorney, but was on the Senate Judiciary Committee. A legal degree/attorney credential is not a constitutional requirement for service on the Supreme Court. Simon's book cites his opinion of the "best" and the "worst" Supreme Court justices. His favorites are: John Marshall, Louis Brandeis, Felix Cardoza (or Cardozo), Oliver Wendell Holmes, Earl Warren, Roger Tanney (the infamous '"slaves are property" Dred Scott decision nothwithstanding), Henry Blackmun, Paul Stevens, Harlan Fiske Stone Tanney was apparently from Maryland and was the first Catholic on the S.C. (circa 1850s). Justices Brandeis and Cardoza were the first Jews (*circa first half of the 20th century). Senator Simon's unfavorites are: Justice McReynolds etal, though I can't recall the etals. I looked-up Justice McReynolds on the internet, and he's not pretty nor goody-goody nor p.c. Please post your lists, and hopefully you would tell why you like/dislike a particular justice's contribution or influence to U.S. legal history. for instance, here's mine, which are admittedly blunt and loaded holdings Best Louis Brandeis: a progressive Justice: the facts of a situation/case are the (apparently) most relevant to a living, breathing adaptive constitutional judgment Worst Antonin Scalia: a regressive Justice: the Constitution's original literal meaning is (apparently) the most important consitutuinal value >Louis Brandeis: a progressive Justice: the facts of a situation/case are the >(apparently) most relevant to a living, breathing adaptive constitutional [quoted text clipped - 4 lines] >Antonin Scalia: a regressive Justice: the Constitution's original literal >meaning is (apparently) the most important consitutuinal values. I think that you made an excellent start. Scalia may go down in history as the worst judge only because Clearance Thomas only follows him and has yet to have an original thought on anything. I think Rehnquist is a very poor justice also. He was like Scalia before he became Chief Justice. Certainly Earl Warren was a very courageous justice going against his party, his president and most of the rest of the US on the segregation issue. Of course he had a little help from Thurgood Marshall. My favorite justice of all time is William O Douglas. He saw government made up of the people and often not serving them. He tried to get America more involved in the running of government so they would not get run over. >  Signature> >Louis Brandeis: a progressive Justice: the facts of a situation/case are the > >(apparently) most relevant to a living, breathing adaptive constitutional [quoted text clipped - 17 lines] > little help from Thurgood > Marshall. Interesting concept, if the implication is that Warren and Marshall worked together on segregation issues on the Court. However, they only served together for about 2 years (67-69). Marshall argued many cases before Warren's court and was an Appellate Court judge, but he did little "with" Warren. "Robert Cohen" <robtcohen@aol.com.spam.no> wrote in message news:20031210150527.22085.00000537@mb- > Worst > > Antonin Scalia: a regressive Justice: the Constitution's original literal > meaning is (apparently) the most important consitutuinal value When I was in law school, even the lefty professors agreed that Scalia was brilliant, so you obviously base your opinion on something other than his intelligence. What I drew from Scalia's opinions (far and away the most logically written of the opinions I read, regardless of whether I agreed with his conclusions) is that he is profoundly distrustful of allowing an unelected oligarchy of nine people (five, really, since a bare majority is all that's needed) to constantly "discover" new things in the Constitution that the people who wrote it did not put in it. Since I am a fan of democracy, I tend to agree. Way too often, folks want to argue that "times have changed" and therefore the Supreme Court should "re-interpret" the Constitution accordingly. The problem is that there is already a mechanism in place to change the Constitution and if times really have changed, there should be no problem using that mechanism. What I find is that most of the time, times have *not* really changed and that these folks are trying to get an unelected oligarchy to overrule the will of the people. I find little comfort in such a philosophy. --Ty re: Scalia's interpretations well, and i swear this is true: Bob Bork was being "borked." It was at the end of the 1980s. Anthony Lewis, the NY TIMES columnist was appearing on C-SPAN prior to the Bork hearing I managed to get a call through I asked Lewis if Bork had accepted the precedent of Marbury versus Madison regarding the IMPLIED meaning of the Constitution, as formulated by John Marshall. I think Lewis smiled, but I don't recall his answer. Then the hearing started: One of the first things that Bork or a backer of Bork on the Judiciary Committee said was: Judge Bork wants the committee to be aware that he does not want to overturn Marbury. It was my rendezvous with destiny. A year of undergraduate Constitutional law from the semi-memorized Mason & Beaney important precedent cases textbook, and that was the payoff. I kinduv liked Bork before as I considered him to be professorial & intellectual, even before his acknowledgment (of which I perceive that I had percipitated). As for Scalia. I saw his interview with Brian Lamb of C-SPAN when he was first appointed or after a year or so. I wanted to ask the Marbury question to Scalia and the members of the Judiciary Committee. When I hear the rhetoric of a "strict constructionist" approach to the Constitution, I think especially about Marbury and all the other cases which are all about the nuances and ambiguities in Supreme Court rulings. Please tell me what Scalia has said about Marbury, and perhaps I can take him off my worst list. > When I hear the rhetoric of a "strict constructionist" approach to the > Constitution, I think especially about Marbury and all the other cases which > are all about the nuances and ambiguities in Supreme Court rulings. > > Please tell me what Scalia has said about Marbury, and perhaps I can take him > off my worst list. I haven't asked him. :-) I don't recall Marbury being brought up by Scalia in any of the opinions or dissents that I read. As for the nuances of the Constitution, I think that Scalia would agree that the Constitution -- and therefore Constitutional jurisprudence -- is often more sophisticated that many would think. Most important things are, you know. What I think Scalia objects to is discovering new rights in the Constitution, which no sane man would argue the Framers intended. He also gleefully attacks illogic and hypocrisy in court opinions. His attitude (or so it seems to me) is that the Legislature is the proper forum for *new* rights to be created. And I would caution those on the left who seem to be so enamored of legislating from the bench. While it has largely benefited lefty causes, thre is no inherent reason why it couldn't later benefit causes the left finds reprehensible. While I would enjoy the irony of hypocritical lefties whingeing about an activist conservative court, I wouldn't care for the damage that it would do to the democratic process. My own opinion is, I think, similar to Scalia's. Defend the rights that were clearly defined in the Constitution by the Framers and by subsequent amendments to the Constitution. But vigorously resist the urge to discover new rights in the Constitution. That is the job of the legislature, not of 5 unelected judges who serve life terms. --Ty > And I would caution those on the left who seem to be >so enamored of legislating from the bench. Since you are throwing your cautions to left leaning Supreme Court Justices, I assume that you talk with God on a regular basis. Signature> > And I would caution those on the left who seem to be > >so enamored of legislating from the bench. > > Since you are throwing your cautions to left leaning Supreme Court Justices, > I assume that you talk with God on a regular basis. Is there a point to your statement? --Ty > > When I hear the rhetoric of a "strict constructionist" approach to the > > Constitution, I think especially about Marbury and all the other cases [quoted text clipped - 31 lines] > > --Ty Arguably, rights which will be specifically enumerated and are not extensions of previously enumerated rights are really Amendments. That would involve an even more restrictive* process than just the legislature. *In the sense that it's an even harder thing to do. The nice thing about being Scalia is that he already have considerable lib'rul-created rights to ignore benefically if he desires. I personally would hate to see Roe V. Wade gone, although it has very weak underpinnings. Obviously, mileage varies on Roe V. Wade. -- Les Cargill > The nice thing about being Scalia is that he already have > considerable lib'rul-created rights to ignore benefically > if he desires. > I personally would hate to see Roe V. > Wade gone, although it has very weak underpinnings. > Obviously, mileage varies on Roe V. Wade. Other than a Souter decision which I can't recall, Roe was one of the worst reasoned cases that I ever read. The court just simply made it all up. Conceding that there was no explicit or even strongly implied right to abortion, the court held that the right to abortion was a result of "emanations" from the protections from search and seizure. Such metaphysical musings did little to impress me with the majority's intellectual strength. Indeed, I think the proper legal term for it would be bullsh*t... Of course, Roe *has* been overruled to a considerable extent. In Planned Parenthood v Casey, the court abandoned the artificial trimester structure of Roe and held that at fetal "viability", a state could permissably restrict abortions. The intriguing thing about that position is that viability is a function of medical technology. As medical technology advances, the point of "viability" will occur earlier and earlier in the pregnancy process. Roe also illustrates how susceptible the court can be to the "slippery slope". Roe is the last in a line of cases that began with Griswold v Conn. In that case, the court discovered a previously unknown Constitutional Right for married couples to buy contraceptives. Eisenstadt v Baird extended this right to unmarried people. Griswold held that the decision to procreate was a fundamental right protected by the Constitution (curious how no one had noticed this before over the previous 180 years or so). Of course, if this was true, then obviously the right to terminate a pregnancy would be protected as well. And that's exactly what happened -- Roe cited the Griswold line of cases as precedent. The problem of course, is that Griswold was a poorly reasoned decision to begin with and no sane person would seriously allege that the Framers intended for the Constitution to protect an individual's right to buy a condom -- or to have an abortion. --Ty > > The nice thing about being Scalia is that he already have > > considerable lib'rul-created rights to ignore benefically [quoted text clipped - 25 lines] > In that case, the court discovered a previously unknown Constitutional Right > for married couples to buy contraceptives. Actually, wasn't it more like the right to not have information about the couple's use of contraception known? I remember vaguely a "right to privacy" component of Roe V. Wade. My reading is slack on this subject, but I *believe* this all came from some of the Margaret Sanger cases 'round the turn of the 20th Century. Which is interesting, because that was as much about the death of a newspaper publisher as any legal issue - once Sanger's main enemy (Comstock?) died, the wind went out of the sails of her opposition. Since the majority of Sanger's cases had to do with censorship and other First Amendment stuff, that may be why it seems odd - but they understood why at the time. I suspect that was by design - it was easier on a First Amendment basis. Please note - I don't know this stuff very well, and I'm musing out loud. > Eisenstadt v Baird extended this > right to unmarried people. Which makes sense. > Griswold held that the decision to procreate was > a fundamental right protected by the Constitution (curious how no one had [quoted text clipped - 5 lines] > seriously allege that the Framers intended for the Constitution to protect > an individual's right to buy a condom -- or to have an abortion. They might, actually. If the Constitution were less a ... guidepost and more of a positively maintained "design document", it might well be more explicit. But what happens is that different politically spun philosohies color things according to the temper of the times. I don't know if that is good or not. It certainly is a richer system. One of my principal criticism of latter day Feminists is the tendency to support "cause" law and not really help refine and clarify the real issues they propose. Seemed the old line Suffragettes had a better handle on things ( which led to ugly things like the Thirteenth Amendment ). The ERA was pretty tame stuff, and really broke no new ground. > --Ty -- Les Cargill > > Other than a Souter decision which I can't recall, Roe was one of the worst > > reasoned cases that I ever read. The court just simply made it all up. [quoted text clipped - 20 lines] > about the couple's use of contraception known? I remember vaguely > a "right to privacy" component of Roe V. Wade. Yes, you're correct. Without getting into the tedium of Const. Law too much, there are 2 rights at work here. 1 is the so-called "right to privacy" -- which does not explicitely exist in the Constitution and the right to procreate, which is a "fundamental right" that cannot be infringed by the state absent some compelling justification. Since I found the procreation right the most legally compelling argument, I probably overstated its importance in my memory of Griswold et al. The "right to privacy" is (at best) implied in the 4th amendment prohibitions against unreasonable search and seizures. My problem is that if the Framers had intended a broader right to privacy, why would they have explicitely mentioned only a narrow application of it -- the right to be secure from warantless searches? Yet Griswold hangs a great deal on this amendment -- "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.". This seems a very weak argument to me. The bottom line is that the court wanted married people to be able to buy condoms, so they created a very thin rationale to justify it. By the time Roe came around, it was so thin as to be nearly invisible. > My reading is slack on this subject, but I *believe* this all > came from some of the Margaret Sanger cases 'round the turn > of the 20th Century. Which is interesting, because that was > as much about the death of a newspaper publisher as any legal > issue - once Sanger's main enemy (Comstock?) died, the wind > went out of the sails of her opposition. IIRC, Griswold drew upon a 1920s-era forced sterilization case for the proposition that one had a fundamental right to bear children. I think this is what you're thinking of. > Please note - I don't know this stuff very well, and I'm > musing out loud. [quoted text clipped - 3 lines] > > Which makes sense. Agreed. Once you proclaim that married people have a constitutional right to contraceptives due to their "right to privacy" and their fundamental right of procreation, it logically follows that unmarried people and minors should have the same right. And that they should have the right to abort a fetus. Griswold was the key, not Roe. If Griswold is assumed to be a correct reading of the Constitution, then the other cases are a matter of logic. The problem is that Griswold was not very well reasoned in my opinion. The recent holding that struck down state sodomy laws is similar to Griswold in this sense. I believe that if that case is not overruled by a future supreme court case, the court will have a very hard time upholding laws against gay marriage, prostitution, bigamy, etc. Sounds far fetched, but I'm sure that the court discovering a right to abortion would have seemed far fetched a year after Griswold. > > Griswold held that the decision to procreate was > > a fundamental right protected by the Constitution (curious how no one had [quoted text clipped - 7 lines] > > They might, actually. <sigh> I am unaware of *any* evidence that the Framers intended any such rights to be in the Constitution. > If the Constitution were less a ... guidepost > and more of a positively maintained "design document", it might well > be more explicit. But what happens is that different politically > spun philosohies color things according to the temper of the times. The Constitution (IMHO) is a contract. And in any contract, you look first to the plain language of the document. In the event of ambiguity, you usually look to the intent of the parties. These rights that were created by the Supreme Court exist neither explicitely in the Constitution nor is there a preponderance of evidence that the Framers intended for them to be there. Indeed, those who defend such discoveries seldom argue otherwise. Rather, they confidently proclaim that "times have changed" and therefore the courts should "interpret" the Constitution accordingly. But if times have truly changed, it seems to me that these folks should have no problem getting the legislature to pass the laws they want. > One of my principal criticism of latter day Feminists is the tendency to > support "cause" law and not really help refine and clarify the real > issues they propose. Seemed the old line Suffragettes had a better handle > on things ( which led to ugly things like the Thirteenth Amendment ). > The ERA was pretty tame stuff, and really broke no new ground. After the feminists refused to criticize Bill Clinton for his various, er, pecadillos, it became obvious to anyone with a full set of frontal lobes that they were just another lunatic band of hypocritical liberals. I give them no more credence than they earned in that sorry episode. --Ty <snip> > The bottom line is that the court wanted married people to be able to buy > condoms, so they created a very thin rationale to justify it. By the time > Roe came around, it was so thin as to be nearly invisible. Aye! > > My reading is slack on this subject, but I *believe* this all > > came from some of the Margaret Sanger cases 'round the turn [quoted text clipped - 23 lines] > > The problem is that Griswold was not very well reasoned in my opinion. I understand. > The recent holding that struck down state sodomy laws is similar to Griswold > in this sense. I believe that if that case is not overruled by a future > supreme court case, the court will have a very hard time upholding laws > against gay marriage, prostitution, bigamy, etc. Sounds far fetched, but I'm > sure that the court discovering a right to abortion would have seemed far > fetched a year after Griswold. I would not be at all surprised. > > > Griswold held that the decision to procreate was > > > a fundamental right protected by the Constitution (curious how no one [quoted text clipped - 16 lines] > I am unaware of *any* evidence that the Framers intended any such rights to > be in the Constitution. Of *course* there is no explicit enumerated right to either. But it goes to the use of Constitutional interpretation of law as political act, which is at least by tradition. > > If the Constitution were less a ... guidepost > > and more of a positively maintained "design document", it might well > > be more explicit. But what happens is that different politically > > spun philosohies color things according to the temper of the times. > > The Constitution (IMHO) is a contract. Well, I think it has "contract" attributes, but is probably more than a specific contract. One interpetation of it is that it is a contract, but there sure is a lot of law out there that depends on it being a bit more than that. Perhaps it *should* be a contract, but has bveen "enriched" beyond that role by the very cases we're discussing. Which makes things kind of circular. To an extent, I see the rationalization that "any means necessary" being used to "fight inmjustice" leaving this sort of stain. The tendency of truly formal, and even semiformal systems to be open to these types of abuse is pretty well know. Perhaps you're "should-ing", and I'm "is-ing". > And in any contract, you look first > to the plain language of the document. In the event of ambiguity, you > usually look to the intent of the parties. These rights that were created by > the Supreme Court exist neither explicitely in the Constitution nor is there > a preponderance of evidence that the Framers intended for them to be there. But they managed to cobble together tissues of inference that imply these things. This can be viewed as quackery or as creativity, dependent on how "fundamentalist" one wishes to be. > Indeed, those who defend such discoveries seldom argue otherwise. Rather, > they confidently proclaim that "times have changed" and therefore the courts > should "interpret" the Constitution accordingly. But if times have truly > changed, it seems to me that these folks should have no problem getting the > legislature to pass the laws they want. Which is an entirely valid critiscism. I don't know, either, other than the "tissues" tend to be following court cases which expose holes. I'd agree - this should be part of the political process. > > One of my principal criticism of latter day Feminists is the tendency to > > support "cause" law and not really help refine and clarify the real [quoted text clipped - 6 lines] > that they were just another lunatic band of hypocritical liberals. I give > them no more credence than they earned in that sorry episode. I'm thinking more along the 1970s timeframe. > --Ty -- Les Cargill > <snip> > > [quoted text clipped - 111 lines] > > I'd agree - this should be part of the political process. <stuff snipped> > -- > Les Cargill In reading through this thread, it occurs to me that the idea that only those rights specifically enumerated in the Constitution should legally exist describes the way a Constitution should function in a Roman law system. The discovery that the community has laws not fully described in written law is a characteristic of the Common Law system, however. Such community law can only be found in judicial precedent. Also, the 9th Amendment rather specifically states "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." To find a Right to Privacy implied in the Constitution would appear to me to be an appropriate application of the procedures of the common law. Keep in mind that at the time the Constitution was written, government was much less capable of intruding in the personal life of individuals, while the technologies of contreception and of abortion did not exist as elements of the discipline of medicine. A right to privacy seems little more than a specific application of the 4th amendment "The right of the people to be secure in their persons, houyses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shal issue but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The writers did not include that the the individual shall have the right to privacy in his person because the government could not act that way at the time, and the medical procedures that were to be argued over did not exist. The courts have to decide each case presented to them, and do not have the luxury of saying "This is a result of a change in circumstances, so the legislature needs to update the Constitution and tell us how to handle it. We will defer deciding this caase until that is done." Instead the court has to look at the facts of the case and the law under which the case is being tried and determine "Is the outcome of this case in fact consistent with the persons' rights under the Constitution?" and make a decision. The 9th amendment, above, seems to me to make Scalia's concept of "Original Construction" essentially unconstitutional. Just a thought presented for your perusal and criticism. I have no legal training other than a semester of business law, so I could easily be completely off base. But I really don't like Scalia, and I recall that Bork was Solictor General under Nixon and failed to honorably resign or be fired during the Saturday Night Massacre. . Roger R. "Roger R" <jayray29remove@hotmail.com> wrote in message news:TFgHb.500 > In reading through this thread, it occurs to me that the idea that only > those rights specifically enumerated in the Constitution should legally > exist describes the way a Constitution should function in a Roman law > system. The discovery that the community has laws not fully described in > written law is a characteristic of the Common Law system, however. Such > community law can only be found in judicial precedent. I happen to be a fan of the common law system. But I think that the Constitution is more akin to a contract than to a normal statute. And common law judges do *not* go about merrily discovering new obligations in contracts unless there is genuine ambiguity or uncertainty about what the parties intended. > Also, the 9th Amendment rather specifically states "The enumeration in the > Constitution of certain rights shall not be construed to deny or disparage > others retained by the people." > > To find a Right to Privacy implied in the Constitution would appear to me to > be an appropriate application of the procedures of the common law. The only problem is that the court did not use that analysis. Rather, they implied it from a specific example -- the 4th Amendment. But my problem is that I do not see any logical reason to imply a general rule from a purportedly specific application of that rule. I think that it's more logical to assume that the 4th amendment was deemed necessary because there was *no* general right to privacy. And while this is arguable, I would tend to want to err on the side of conservatism, since the folks discovering these "new" rights are (a) unelected and (b) serve for life. > The courts have to decide each case presented to them, and do not have the > luxury of saying "This is a result of a change in circumstances, so the [quoted text clipped - 3 lines] > tried and determine "Is the outcome of this case in fact consistent with the > persons' rights under the Constitution?" and make a decision. The Constitution contains provision to alter its contents, which has happened dozens of times. I am less sanguine about the desirability of letting 5 unelected life-tenured judges overrule the elected legislature, the plain language of the Constitution, and/or the original intent of the Framers. It looks to me like a naked power grab by folks who can't get their way by democratic means. And I find that worrisome. > Just a thought presented for your perusal and criticism. I have no legal > training other than a semester of business law, so I could easily be > completely off base. Well, FWIW, I think you've articulated a better defense of activist courts than most of the folks with legal educations have :-) > But I really don't like Scalia, and I recall that Bork > was Solictor General under Nixon and failed to honorably resign or be fired > during the Saturday Night Massacre. . I don't know Scalia, so I have no idea if I'd like him or not. I enjoy his scathing comments -- "a scathing Scalia dissent" was the commonly used term in law school. I do admire his reasoning skills and the logical rigor with which he argues. And I consider him to be the smartest on the court -- and that's a very smart group of people. --Ty > "Roger R" <jayray29remove@hotmail.com> wrote in message news:TFgHb.500 > [quoted text clipped - 10 lines] > contracts unless there is genuine ambiguity or uncertainty about what the > parties intended. I think that I can agree with you there. However, judges have the responsibility of determining how a particular law will be applied in given circumstances. Once that decision is made, it creates a precedent for how to treat the law in those circumstances. The case of privacy is, as I described earlier, clearly a case where circumstances have sharply changed over the last two hundred years. Precedents should give the idea regarding how the courts treated the law during the period of the change, and if there is a clear pattern, it seems to me to be reasonable to infer (rarely) that there was guidance given from the original Constitutional statement. Because the common law system of jurisprudence provides a method of consistently applying law in given circumstances, it does seem to be able to adjust for changes in the cirmstances over time. A Roman law system would require that all such changes be done by the legislature. A Common law system does not need to be adjusted so frequently by the legislature. I agree with you that I find judicial activism inherently dangerous. However, I live in Texas. We have a state constitution established in 1877 when the carpetbaggers were removed after Reconstruction. Last November we voted on 24 amendments, and in November 2000 there were about as many. I have no idea how many total amendments have been passed, let alone proposed. Amendments substitute for legislation. The result is a legal monstrosity that only an attorney working by the hour could love. Since 1791 the US Constitution has been amended 27 times, and the only amendment that seems especially unclear to many people is the 2nd Amendment. So I also don't like amending the basic law of the land. > > Also, the 9th Amendment rather specifically states "The enumeration in the > > Constitution of certain rights shall not be construed to deny or disparage [quoted text clipped - 10 lines] > logical to assume that the 4th amendment was deemed necessary because there > was *no* general right to privacy. Yeah, but the first ten amendments were required becauset there were no individual rights included in the basic Constitution. They are the addition of those rights, required before some of the States would approve the Constitution itself. The 4th amendment is the place where the government is restricted from violating the security of the person against unreasonable searches and seizures. It then becomes a requirement that the court will establish rules that implement that right. If redefining the language to state that a person has a right to privacy properly encompasses the method of implementation of that right and makes it clear how the courts view it, what is the problem? The right is the same as always, but the circumstances under which the government is able to violate it have changed sharply over the last two hundred plus years. Precedent has kept the application of that right generally up to date with the technology, and precedent keeps is in line with the rest of the Constitution. The only thing that is really new is the term "privacy" which succintly describes the manner in which the courts were already applying the 4th amendment. > And while this is arguable, I would tend to want to err on the side of > conservatism, since the folks discovering these "new" rights are (a) > unelected and (b) serve for life. Every time I read that a picture of Clarence Thomas flashes in my minds' eye. However, that is one reason why the courts do not opine unless a specific case is presented to them. Except for their rare cases of original jurisdiction, they are supposed to be limited to issues that have not been resolved by the lower courts. Bush vs. Gore appears to me to be a nasty violation of that practice. Personally, I think that they took it partly out of ideology and partly because one or two Justices were panicked about the uncertainty of legitimacy that would have resulted if the election had gone to the House of Representatives. The historians will not get access to much of the basic data on that case for at least a dozen years after Bush leaves office. > > The courts have to decide each case presented to them, and do not have the > > luxury of saying "This is a result of a change in circumstances, so the [quoted text clipped - 12 lines] > Framers. It looks to me like a naked power grab by folks who can't get their > way by democratic means. And I find that worrisome. I do too. However, the time that passes before cases reach the Supreme Court tends to reduce the urgency of deciding them according to ideology instead of law. The legislature does not particularly cover itself in honor in its actions, either. You are aware that the Patriot Act was provided to the legislators the night before the vote, aren't you? That was NOT a well-reasoned action. The first Appeals court decisions have only just been made, though the Supremes are apparently going to look at some parts of it this session. Someone clearly needs to. > > Just a thought presented for your perusal and criticism. I have no legal > > training other than a semester of business law, so I could easily be > > completely off base. > > Well, FWIW, I think you've articulated a better defense of activist courts > than most of the folks with legal educations have :-) I will admit that I keep a copy of "The U.S. Constitution for Everyone" by Jerome Agel & Mort Gerberg by my computer at all times. It was $6.95 well spent, and is a lot easier to use than the findlaw on-line version. Oh, and Barnes & Noble has a bound copy of the Federalist Papers for sale right now for $9.98. I only just got it, so I haven't read it yet. It is my personal opinion that for the most part there is no such thing as an activist court system. The appeals process will keep activism to a minimum, as will the length of time it takes to have cases heard or to appeal cases. Generally, I think the phrase 'activist courts' is more of a political statement used by people who are generally on the losing side of a lot of issues and don't understand or ignore how the decisions are actually made. Court decisions are consensus decisions made by highly trained and experienced attorneys, with the rationale presented, and then the opportunity to appeal tends to reapply the law to the circumstances. to rail about activist judges is an effort by outsiders on the losing sides who are attempting to make the entire system suspect because they cannot win otherwise. > > But I really don't like Scalia, and I recall that Bork > > was Solictor General under Nixon and failed to honorably resign or be [quoted text clipped - 8 lines] > > --Ty <snip> > In reading through this thread, it occurs to me that the idea that only > those rights specifically enumerated in the Constitution should legally [quoted text clipped - 23 lines] > person because the government could not act that way at the time, and the > medical procedures that were to be argued over did not exist. I beleive that privacy ends where the gathering of data to investigate a suspected crime begins. Since the technologies of contraception and abortion were specifically illegal at the time, it does not look as though any reasonable expectation of privacy existed. I think this probably explains why the synthesis as presented by Ty was necessary. > The courts have to decide each case presented to them, and do not have the > luxury of saying "This is a result of a change in circumstances, so the [quoted text clipped - 3 lines] > tried and determine "Is the outcome of this case in fact consistent with the > persons' rights under the Constitution?" and make a decision. Isn't this one of the implications of Madison V. Marbury? Not completely sure, but it looks like it. The court is independent of the legislature that way. M v. M seems to have represented a "bootstrapping" of this policy, since it was ambiguous in the Constitution as written. > The 9th amendment, above, seems to me to make Scalia's concept of "Original > Construction" essentially unconstitutional. > > Just a thought presented for your perusal and criticism. Thanks for the nicely done article. > I have no legal > training other than a semester of business law, so I could easily be [quoted text clipped - 3 lines] > > Roger R. -- Les Cargill > Bob Bork was being "borked." Although I'm sure he didn't think so then and doesn't think so now, those hearings were the best thing that ever happened to Bork; otherwise, his mark on history would have been as the man who -- after two superiors refused on principle and were fire or resigned -- fired the Watergate Special Prosecutor. re: the supreme court making new laws well i took a couple of law-oriented courses in polisci: besides con law there was elementary judicial principles i became a follower of "legal positivism" rather than "natural law" legal positivism emanates from hans kelsen who taught in europe and at berkeley my professor was a student of kelsen in austria prior to the nazi era a judiciary idea i was exposed to: when a judge makes a real world case decision, then "new law" is being created thus (imho), in every supreme court case starting in the late 18th century through the next first tuesday: law is created imho, the legal philosophy holdings of the first chief justice, john marshal,l and of antonin scalia are mutually exclusive however, i can understand (grudgingly) that scalia is sick and tired of "marshallism" why? because interpretation of the Constitution is afterall part of a political process do i think that's "wrong?" no, it's the way it has to be i was not surprised that five justices ruled for the republican candidate in the florida election crisis i was not surprised that they synthesized reasons & rationales to justify themselves i had studied law as part of politics if the predominanting number of justices had been democrat appointees, then ditto > When I was in law school, even the lefty professors agreed that Scalia was > brilliant, so you obviously base your opinion on something other than his > intelligence. "Brilliant" and "bad" are not mutually exclusive. > > When I was in law school, even the lefty professors agreed that Scalia was > > brilliant, so you obviously base your opinion on something other than his > > intelligence. > > "Brilliant" and "bad" are not mutually exclusive. Agreed -- which was why I supposed that he based his opinion on something other than an evaluation of Scalia's intellect. --Ty |
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