Stopping judges from legislating

Sorry - one more thing to say - the Supreme Court doesn't look at laws created by the national government because they're irrelevant to the constitution - the Missouri Compromise is entirely irrelevant to their decision.

I hit Alex generally hit the nail on its head here with his point about Plessy. And with regards to slavery, there was the pesky problem of the Fugitive Slave Act and the fact that slaves counted as 3/5 of a person (and Native Americans weren't counted at all) and the ability of the Federal Government to nationalize the various National Guards to put down slave revolts etc.

I would just add that Ms. Flint's notion of judicial legislation and activism and judicial restraint are pretty much empty buzzwords because there is no ground upon which one can reconcile her statements with her own notion of separation of powers.

The Supreme Court honestly believed that its decision would defuse the pre-existing tension, Dred Scott was a product of its times and stands as a classic example of what Professor Jack Balkin would call "The Problem of Constitutional Evil" in that the Constitution sanctioned the institution of slavery and it was understood by all the states that this was the case. So under Ms. Flint's notion of judicial restraint, this is precisely what the Supreme Court should have done. Anything else while morally right would not be exactly lawful.

It would thus appear that her idea of judicial activism is either a) the decision is not one she likes (Dred Scott) or b) is against majoritarian will (Massachusetts and presumably the Hawaiian Supreme Court on the issue of gay marriage) both of which reveal a profound misunderstanding of the role of the US Supreme Court as guardian and final adjudicator on the meaning of the interpretation as well as what the Constitution represents i.e. an anti-majoritarian document. This explains the electoral college, the entire system of the two houses of Congress (Senators were only directly elected recently) and the Bill of Rights. On the last, a more individualist notion of rights could scarcely be imagined.

If a law is contrary to the Constitution, it is null and void and the function of the Court is to point that out and strike it down. Thus, if marriage is a right (as it is) regardless of one's sexual orientation (which is where the debate lies), then it does not matter the extent of popular opposition to it. By way of example, in the case of Palmore v Sidoti, Burger CJ said that the court could not give effect to private prejudices and give custody of a child to the father simply because the mother was entering into a mixed marriage. Or perhaps even more analogous would be the case of Loving v Virginia which finally struck down anti-miscegenation laws, laws that were created, sustained and justified on ground remarkable similar to those used to sustain anti-gay marriage laws. And they were all validly enacted by democratic legislatures and massively popular. I would be very interested to know if Ms. Flint would consider the Lovings (or the NAACP in its push to integrate public schools) to be one of those "special interests groups which have a history of abusing our government process".

If Ms. Flint really wanted to attack special interest groups, perhaps she should consider the idea of legal standing of corporations to sue for Constitutional violations which was created almost as an afterthought by the Supreme Court and has been used to great effect by them. But even that would be a logical fallacy because it's simply a blatant appeal to emotions without any real justification for why it is right or wrong, or good or bad.

There are much deeper philosophical underpinnings to what constitutes fidelity to law, and whether one can necessarily achieve it from an objective point of view. But it's a crying shame that Ms. Flint would label judges who she disagrees with as "corrupt" without even attempting to demonstrate how they were even necessarily wrong. Now that is really wrong.

Urgh, that will teach me to preview before I post. I meant to say "I think Alex generally hit the nail on its head" not "I hit Alex generally hit..."

It would be nice if we had a clear example of judicial activism as oppose to people screaming judicial activism just because some judges conclude differently from them (Justice Sunday I and II come readily to mind).

After all, what does it mean "to judge"? Formally, the judge applies the given law to the given facts to come to a given result. The presumption is that there is always one clear right answer (or some sort of best fit ala Dworkin) to any case but unless it is an "easy case", there often will not be. However, that is precisely where all this outcry surrounds. So unless the legal reasoning is clearly unsustainable (and one would be very hard pressed to find that it is the case because of the sheer fluidity of language and meaning), claiming that this is "legislating from the bench" becomes empty political posturing.

Case in point: is money speech? The Constitution simply says Congress may not abridge the freedom of speech. But Mitt Romney thinks so and would thus work to repeal the McCain-Feingold Act. The sheer irony of course is that the says this right after bashing "judicial activism" on the Supreme Court, forgetting that it was the same court that interpreted (oh horrors!) the 1st Amendment and the meaning of speech to include money.

Perhaps one of the most deceptie opinion pieces I've read in the Daily in my many years... let's debunk the important ones and just leave it at that.

First up, the author's reference to Dred Scott is code for Roe v. Wade. Anti-choice advocates have been using this language for many years... you can even see Pres. Bush use it in the 2nd presidential debate of 2004. While the author never mentions the issue, this is an attack on a women's right to choose.

Second, Hamilton was worried about judges, but he was also the defender of a strong centralized government that would not be easily swayed by the masses. He supported life tenure for judges and ensured that impeachment would be the only means for removal. The quote about the sword and the purse, which the author takes out of context, is meant to illustrate that judges will have to convince the political branches of the merits of their decisions because they will lack direct political means for implementation (see the history of Brown v. Board of Ed to learn more about how it was Congress through the use of federal dollars who really implemented the decision). Because all judicial decisions can be overturned by an act of the political branches... sometimes it takes a constitutional amendment, but the option is there. Othertimes they can just be ignored. But for more than 200 years the judges of the republic have been handing down decisions, picking winners and losers, and in only a handful of situations have the people chosen to use their proper authority to override the decision or to ignore a decision.

Last issue, the decision of Dred Scott itself, is improperly portrayed. The Scott decision was made before the 14th Amendment, which fundamentally altered the power between the federal government and the states and was only enacted because the North won the civil war. Without the 14th Amendment, the Missouri Compromise has no legal authority (see Article I, sec 8 of the U.S. Constitution for a complete list of things Congress could do before the adoption of the 14th). The Federal government was not empowered to make those sorts of decisions for states, so the court correctly determined the feds had gone too far. Conservatives are always crying out about the federal government overreaching... well, that's what happened here and the court struck it down. We can agree the decision's outcome is immoral, but as a matter of law the decision is difficult to challenge.

Which is ultimately what this is whole line of attack is about. Social conservatives seem to have grown tired of the law and are now more interested in outcomes, they want all the branches of government to march lock step in their desired direction and damn the unintended consequences. The worry I would have, if I were them, is what happens when the popular tide turns against them and all those minority rights provided by the courts are no where to be found thanks to a relentless 30 year campaign to vilify and undermine our legal institution just so they can ban abortion.