Sandra Day O'connor warns of US dictatorship
- Thread starter ZZZzzzzzzz
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Complete non sequitur response.
The court simply is not representative of the religious, political, economic, ethnic, or racial makeup of this country....especially when there are people of diversity in this country who are qualified to be SC justices.
Fact....
The court simply is not representative of the religious, political, economic, ethnic, or racial makeup of this country....especially when there are people of diversity in this country who are qualified to be SC justices.
Fact....
In itself, of course not.
However, when a choice is available, and there are many qualified candidates, a bench that is inclusive, rather than exclusive in nature, i.e. white, male, Catholic, etc. will be more representative in nature of our democracy.
However, when a choice is available, and there are many qualified candidates, a bench that is inclusive, rather than exclusive in nature, i.e. white, male, Catholic, etc. will be more representative in nature of our democracy.
To the issue of O'Connor's voting to end the Florida legal actions concerning the Bush-Gore election, you stated:
"She is not a complete moron, and I never said she was."
The clear inference to be drawn is that you find O'Connor to be pretty weak minded, despite her occasional concurrance with your view of what is or is not the proper interpretation of law.
You understand constitutional law better than most people here. But, the fact that you don't agree with high court rulings doesn't make you right and the court wrong.
The USSC is, by definition, "right," on every question of the U.S. Constitution, and you know it. You may not like the decisions. I frequently don't. Regardless, whatever the nine justices decide at any given instant is the law of the USA, whether we like it or not.
I don't think that you serve your viewpoint well, by creating the impression, that when a high court ruling disagrees with your view of the Constitution, that the court is wrong and you are right.
The fact is the opposite. So, it is highly disingenuous to argue that the court or its members operate in anything close to a moronic fashion.
I think that Scalia has some "issues," as demonstrated by his strident comments in non-court appearances. He seems to be terribly annoyed that the rest of the world doesn't see his vision of originalism as obviously correct.
But, I don't view him as a moron, or anything close. He's just a guy from Chicago who, if given total power, would likely succumb to the Siren's call of advocating his vision in preference to more moderate views. And, that's why there are nine justices, rather than one (and a Congress and a President).
Likewise, O'Connor is not a moron, or anything close. She is a thoughtful jurist who has chosen to take pragmatic views in meeting out justice, with the knowledge that the alternative of absolute adherence to the text of the Constitution, may serve the legislative process, but it will not serve the litigants.
Courts are supposed to decide "cases and controversies." Legal scholars determine the rules from the case holdings.
Not long ago, a legal scholar was certain that the Miranda warning was not a Constitutional mandate.
He was wrong. Not because the Constitution says so, but because the U.S. Supreme court ruled against him.
The bottom line is that the Constitution is a set of not very precise principles that must be interpreted by judges to be useful. It's not some perfect mathematical set of logic gates where the decision tree for every circumstance is obvious to anyone who's not a "complete moron."
The U.S. will not come to a bad end if the Constitution does not precisely lay out the barrier between where federalism ends and states' rights begins.
...and neither will you.
I still believe that the judges should leave their personal opinions out of their rulings. Like your buddy kjent said once, that the judges are trained to be impartial and unbiased. That's how it should be.
There will be many cases where it is unclear whether the law being enforced actually applies to the case. That's all they should rule on.
And if society wants a law to apply to a new, unforseen circumstance that they want covered, a new law should be passed.
So what I'm saying, is that Congress should pass the laws. They will try to include unforseen circumstances when they write that law. When a casr falls into the grey areas, you go to the SC to get a ruling. And if the SC says it doesn't apply, then a new law should be written.
Question - what do you see happening to other state's rights issues - specifically medical mj here in Cali if the Roe v Wade is overturned? Do you think it will be challenged as well ?
Kent (and ZZZ),
With respect, I think you are missing my central point. It is not important whether or not we agree on a particular decision, and I would be chary of forming an opinion on a justice that way. What I am concerned about is an overriding philsophy of constitutional jurisprudence. In O'Connor's case, I don't see one. What I see is a series of ad hoc decisions, from her standpoint well-intentioned to be sure, but in my view not what the Supreme Court should be doing.
One horrible example was the University of Michigan affirmative action cases, in which she memorably wrote that affirmative action is acceptable now, but in 25 years maybe not. That is a political judgment, not a constitutional ruling. This is the crux of the "living constitution" versus "originalist" debate. In her view it is perfectly reasonable to write that something can be constitutional todya, but in 25 years maybe not.
Similarly, she defended Roe on the basis that people were used to it. Of course, the same rationale didn;'t apply when the issue was overturning a relatively recent precedent that upheld a state's ban on homosexual sex.
The same objection applies to ZZZ's desire for a racially diverse Court. Nothing wrong with it again, although liberals certainly didn't seem to feel that way when the face of that diversity was Clarence Thomas. But constitutional adjudication shouldn't depend on one's skin color, any more than one would say that it is important to have diversity in the weather forecasting profession. How does skin color change weather forecasting? It shouldn't, and neither should the meaning of the constitution change depending upon the race of the justice deciding a case. If it does make a difference then I offer that as prima facie evidence that what is going on is legislating from the bench, not proper constitutional adjudication.
With respect, I think you are missing my central point. It is not important whether or not we agree on a particular decision, and I would be chary of forming an opinion on a justice that way. What I am concerned about is an overriding philsophy of constitutional jurisprudence. In O'Connor's case, I don't see one. What I see is a series of ad hoc decisions, from her standpoint well-intentioned to be sure, but in my view not what the Supreme Court should be doing.
One horrible example was the University of Michigan affirmative action cases, in which she memorably wrote that affirmative action is acceptable now, but in 25 years maybe not. That is a political judgment, not a constitutional ruling. This is the crux of the "living constitution" versus "originalist" debate. In her view it is perfectly reasonable to write that something can be constitutional todya, but in 25 years maybe not.
Similarly, she defended Roe on the basis that people were used to it. Of course, the same rationale didn;'t apply when the issue was overturning a relatively recent precedent that upheld a state's ban on homosexual sex.
The same objection applies to ZZZ's desire for a racially diverse Court. Nothing wrong with it again, although liberals certainly didn't seem to feel that way when the face of that diversity was Clarence Thomas. But constitutional adjudication shouldn't depend on one's skin color, any more than one would say that it is important to have diversity in the weather forecasting profession. How does skin color change weather forecasting? It shouldn't, and neither should the meaning of the constitution change depending upon the race of the justice deciding a case. If it does make a difference then I offer that as prima facie evidence that what is going on is legislating from the bench, not proper constitutional adjudication.
Your prima facie case presumes that a jurist must either strictly construe or broadly interpret the law, and that that there is no room for the pragmatic jurist.
I disagree. The job of a judge is to do justice to the litigants, not to proclaim the law for everyone. Example: many people have attempted to analyze Bach's music so as to show others how it works. But, Bach didn't analyze his music -- he just wrote it, and even where it might be viewed by the pedagogist as analytically incorrect -- it's still Bach's music, so get over it.
Similarly, legal, historical and political scholars seek to analyze the court's and various justice's decisions so as to show others how those decisions work. But, a judge just reads the facts of the case, applies the law and attempts to ascertain a just outcome.
You would have outcomes be unjust and inequitable in order to suit your view of how the constitution should be interpreted, which happens to align closely with Scalia's and Thomas' view of interpretation. Justice Breyer's mind space would likely disagree with at least 50% of everything you and Scalia think is obvious, but that doesn't make him wrong -- it just means he reads the document differently.
O'Connor has indeed made what are in hindsight extremely inconsistent rulings. But, that is only when considered from the long legal scholarship view.
The litigant who is in the courtroom only cares about his/her case, not the one prior or the one to follow, and the judge is only supposed to deal with the facts and the law in evidence.
O'Connor based her decisions primarily on what she thought was required to do justice in a particular circumstance. This may not comport with your idea of how the court ought to do its business, because it doesn't lead to certainty at the lower court levels.
Personally, I think that the court, and frankly the entire legal profession is suffering horribly from a lack of pragmatism, and that the reason why this is so, is that law schools have for the past 30 years now relied on what is becoming an almost totally deterministic means of identifying future lawyers based on their ability to reason like a computer, rather than as a human being (the LSAT test).
Yale, which is statistically rated as the highest quality law school in the country, based on the percentage of graduates who pass the bar on their first attempt, will admit almost anyone, regardless of their GPA or other factors, if that person has an LSAT score of 175+. In short, Yale has reduced what legal greatness is to raw brainpower.
A person with a passion for helping the common person with a common problem, but perhaps less than stellar gray matter, need not apply -- they don't make for great lawyers -- better try social work.
This bird is coming home to nest in the Supreme Court now. The justices who are being appointed are more and more of the absolute reasoning mind. Just read Roberts' and Alito's opinions. They are devoid of pragmatism -- it's all pure math.
When reasoning law, a judge is supposed to be completely analytical. But, when doing equity, a judge is supposed to consider fair play and justice. These latter terms are not easily quantified, but one thing is certain: courts of equity came into existence to soften the blow of absolute reasoning found in the courts of law.
You don't like equity, because it's squishy and open to interpretation. Nevertheless, without equity there is no humanity in the law -- it becomes just a merciless number crunching machine. This is an easy position for a judge: "Hey, I don't make the law, I just interpret it. So, if you don't like it, call your legislator and complain!"
Fortunately, the Constitution says that the judicial branch's power extends to both law and equity, and just as fortunately, constitutional jurisprudence still has room for a little of both.
You call this behavior legislating from the bench. I call it doing justice to the litigants, and letting the legal scholars analyze the music to try to figure out how it all works together.
I think that if you get your way, that you will be extremely unhappy with the outcome, because the face of the courts will become a monolithic wall of indifference, which is what the legislative branch has already become, as the result of the fact that the political parties know that their power is so entrenched that elections are just a means of changing names on the backs of the uniforms, while the general makeup of the teams is nearly unalterable.
The Big Court is now approximately a dead heat on every issue, with no moderating forces. If Stevens dies before Bush is out, then we will see an originalist tidal wave of new law. If Bush is out, and a Dem is elected, and then Stevens retires, we will remain in the present strident logjam for another decade.
What the court needs is another pragmatist to take O'Connor's place. I recognize that you don't agree with this view. But, there's still time, so I'll keep trying to change your mind.
The job of a judge is to do justice to the litigants, not to proclaim the law for everyone. quote from kjkent
Your position seems to be a radical departure from the usually role of an appellate court. Especially in commercial matters. Your position seems to lead to chaos. How would one know how to draft intellectual property deals and weigh the costs of a transaction if the courts are not going to apply rules and principles consistently.
(I realize that the Supreme court also has some orginal jurisdiction as well in limited matters but that is a seperate concern.)
for instance your position could lead to the argument that strict liability should be abolished because it may not have always been equitable to hold manufacturers liable for defective products. Which in the long run might lead to products being more dangerous. Coke cans might start exploding if someone were to store them in manner not reasonable foreseeable or if a kid shook them up to much right before you got to the shelf.
Your position seems to be a radical departure from the usually role of an appellate court. Especially in commercial matters. Your position seems to lead to chaos. How would one know how to draft intellectual property deals and weigh the costs of a transaction if the courts are not going to apply rules and principles consistently.
(I realize that the Supreme court also has some orginal jurisdiction as well in limited matters but that is a seperate concern.)
for instance your position could lead to the argument that strict liability should be abolished because it may not have always been equitable to hold manufacturers liable for defective products. Which in the long run might lead to products being more dangerous. Coke cans might start exploding if someone were to store them in manner not reasonable foreseeable or if a kid shook them up to much right before you got to the shelf.
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Porgie & bro;
They first have to get by the local sheriff who is elected by the people.
Learned a bit of spanish anyway;
no problem
