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Scalia on the court’s new philosophy about the Constitution
Posted by: McQ on Monday, October 23, 2006

In the title I use the word "new" in a relative sense. And, though few will find it surprising, Justice Scalia doesn't like the "new" philosophy:
Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday.

[...]

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."

Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides.

"The court could have said, 'No, thank you.' The court [could] have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,' " Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."
Emphasis mine. There are some important and fairly radical points (at least in this time) made in those few sentences. Scalia is described as a strict constructionist and those words do nothing to disabuse me from the notion that the description is apt.

I found especially interesting his take on the independence of the judiciary. And he's right, it's wonderful until they start doing stuff in which most of us feel they have no business getting involved. Scalia points (as do most of us) specifically to social issues:
"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."
And there is the key point. When the courts are doing their job, there is very little controversy generated. Pretty cut and dried stuff. It is either legal or illegal, constitutional or unconstitutional. When doing their job of interpreting the law in that context, their independence is critical.

But when, as Scalia says, they "choose" to involve themselves in issues and begin legislating from the bench, then they risk their independence and their crediblity as an unbiased arbiter of the law and Constitution.

That is what many of us complain about concerning the court today. Given those issues in which the courts have deeply involved themselves, few, if any, were their business. Instead, for the vast majority, they were issues to be settled by the people and their legislatures.

Scalia is one of the reasons I want to see Republicans hold the Senate. I want more justices who are interested in a stricter and more narrow focus for the Supreme Court (and lower courts). And frankly, given the courts from which most of the more controversial decisions have come (and whose agenda they support), I have no faith at all that Democrats are interested in doing so at all.
 
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And he’s called the ’radical’. Would that more justices had his perspective. Judge by the law. No law? Then no judgment. Is that too much to ask for?
 
Written By: meagain
URL: http://
"...issues to be settled by the people and their
legislatures."

That only works in cases where the legislators pass reasonable laws, i.e., laws that you like.
Laws are a winner-take-all proposition, and do not in themselves balance the rights of those in favor and those in dissent. Remember that, for the most part, laws aim to restrict private choice, not expand private liberties. That’s were the courts can provide guidance and relief by pointing out when laws have gone too far. But in order to do that, they would have to take up the issues at the core of the laws.

On social issues, then, a person would have to keep moving around the country until he found a location whose laws he could bear to live under. The result would be warring enclaves and suppresion of individual righta within those enclaves. There is too much division already, thank you.

Scalia’s strict constructionism fails to allow for the possibility of an evolution in uncderstanding how age-old precepts impact on modern life. Issues arise today that the founding fathers never dreamend of. Even Scalia has to be pretty creative in fitting some of his rulings into his ’strict’ framework.



 
Written By: Laime
URL: http://
That only works in cases where the legislators pass reasonable laws, i.e., laws that you like.
Not at all ... it works when they pass laws which are Constitutional, whether I like them or not.
 
Written By: McQ
URL: http://www.qando.net/blog
Laws are a winner-take-all proposition, and do not in themselves balance the rights of those in favor and those in dissent.
Actually quite a large number of laws involve compromise both while the bill is being written and through the amendment process.
On social issues, then, a person would have to keep moving around the country until he found a location whose laws he could bear to live under. The result would be warring enclaves and suppresion of individual righta within those enclaves. There is too much division already, thank you.
Except that people already do this now. I live in Delaware solely because it means can largely avoid the crappy laws in Maryland where I work. And I am by no means alone in doing this. People cross state lines to avoid laws they don’t like all the time. Your "warring enclaves" is of course hyperbolic crap.
Scalia’s strict constructionism fails to allow for the possibility of an evolution in uncderstanding how age-old precepts impact on modern life.
No they don’t. They require that the people and government formalize its understanding of this conceptual evolution through the legislative and amendment process rather than by just "assuming" unenumerated rights and principles into existence.
 
Written By: Jeff the Baptist
URL: http://jeffthebaptist.blogspot.com
I read thesr postings directly from my live journal blog.

While I read this, I was thinking "I bet a hundred pesos this was posted by McQ."

Click says: BINGO

Your conservative mack is getting stale, Man.

Fortunately, 59% of the country thinks so as well.

I know it must be tough defining unenumerated rights because SCOTUS avoids those cases like a plague.

A strict constructionalist relizes that there is this thing called the 9th Amendment.

Its meaning is very clear; with probably the fewest words of any amendment, it is the broadest of all of them.

This is a living document, meant to be interpeted according to the times.

More Scalias (snort)! U funny man, McQ!
 
Written By: Rick Day
URL: http://goplobby.org
It’s all crap, Scalia becomes an activist when activism suits him.

Moreover, the Constitution, predating a huge amount of modernity, from the industrial revolution forward, does not address a lot of topics, should the courts be precluded from hearing cases on such?

Telecom was never addressed in the Constitution, should the courts have been precluded from being able to decide that a right to privacy applies to telecommunications? The state sure wasn’t going to do that.

Replace telecommunications with reproductive medical technology.

Scalia is blowing smoke, this is just the philosophy that better fits his ideology, but he will stray from it if ideology demands, which makes him an ideologue, not a constructionist.

Bush v Gore - most ridiculous minority decision on top of a ridiculous majority decision, both of which Scalia supported. Pure activism.

Cap

 
Written By: CaptinSarcastic
URL: http://
That is what many of us complain about concerning the court today. Given those issues in which the courts have deeply involved themselves, few, if any, were their business. Instead, for the vast majority, they were issues to be settled by the people and their legislatures.

Scalia is one of the reasons I want to see Republicans hold the Senate. I want more justices who are interested in a stricter and more narrow focus for the Supreme Court (and lower courts). And frankly, given the courts from which most of the more controversial decisions have come (and whose agenda they support), I have no faith at all that Democrats are interested in doing so at all.
Oh, please.


McQ, Scalia is a sometimes-libertarian, and he does not VOTE as if states have the right to legislate on suicide. As the far right, social-con Hadley Arkes approvingly wrote in NR:
Gonzales v. Oregon concerned provisions the State of Oregon had made for the involvement of physicians in assisted suicide. John Ashcroft, as U.S. attorney general, invoked his responsibility under the federal Controlled Substances Act to find that the use of drugs in suicide was not a legitimate medical purpose.
And Scalia bought that perversion of the Commerce Clause, to Arkes’ delight:
In this respect, Scalia followed the brief for the government as he leaned on the traditional understanding that has enveloped the practice of medicine since the time of the Hippocratic oath. Medicine involves the task of healing or treating the sick — according to Webster, it is the "science and art of dealing with the prevention, cure, or alleviation of disease." And as Scalia observed, "virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of ’prevention, cure, or alleviation of disease,’ and (even more so) that assisting suicide is not a ’legitimate’ branch of that ’science and art.’"
Antonin Scalia too often abandons libertarianism for the theo-con version of morality, and is all too happy to ignore constitutional limitations when his personal morality dictates it. He was also AWOL on the med marijuana Raich case.

Judicial appts are not a reason, any more, to prefer GOP control of the senate.

I hold admiration for Scalia on some cases (e.g. Hamdi and Kyllo,) but he is not faithful to a libertarian, non-activist jurisprudence when some issue really galls him.
 
Written By: Mona
URL: http://inactivist.org/
Bush v Gore - most ridiculous minority decision on top of a ridiculous majority decision, both of which Scalia supported.
What, that Florida should follow Florida law and not make new law up on the fly?

Yeah, real activism there, Cap.
 
Written By: McQ
URL: http://www.qando.net/blog
Your conservative mack is getting stale, Man.
Well you know what to do about that don’t you Ted, er, I mean Rick.

And, seriously, it wouldn’t bother me in the least.
 
Written By: McQ
URL: http://www.qando.net/blog
MCQ: "...it works when they pass laws which are
Constitutional, whether I like them or not."

That would require someone to determine that these laws are constituional. I hope you are not relying on our legislators on issues of the Cosntitustion. God help us, if that were so.

I posted here only to point out that like the Bible and the Detaineee Act, the Constitution can be interpreted in alternative ways. That’s why there are nine judges, after all. There have always been and will always be different schools fo thought on this. It’s only when too many judges have the same philosophy that we get into trouble. It’s the diversity, not the unanimity, of opinion that keeps the country chugging along.
 
Written By: Laime
URL: http://
That would require someone to determine that these laws are constituional.
Hey, yeah, you figured it out ... that’s the court’s job.

That’s what they do, for heaven sake.
I posted here only to point out that like the Bible and the Detaineee Act, the Constitution can be interpreted in alternative ways. That’s why there are nine judges, after all.
Yes and then there is stuff made up out of whole cloth. Have you looked at how broadly the Commerce Clause is interpreted for heaven sake?

Scalia’s point is that sometimes judges choose to involve themselves in things in which they really have no business and have no charter. I, like him, would prefer they stick strictly to their job and let the legislators do theirs.
 
Written By: McQ
URL: http://www.qando.net/blog
last I checked, pretty much anyone can file a lawsuit. now, while the Sup Ct doesn’t need to grant cert, both the District Courts and the Courts of Appeal in no ways choose the cases they hear.

does forcing a woman to carry a fetus to term deprive her of "liberty"? I can think of no other governmental act, other than incarceration, which would cause greater deprivation of liberty (and even that’s arguable).

 
Written By: Francis
URL: http://
What, that Florida should follow Florida law and not make new law up on the fly?
This was the talking point, not the SCOTUS decision in Bush v Gore.

The SCOTUS decision was the nonsensical "this train only", (read - don’t use this as precendent or every election in every state every year is unconstitutional) claim that because counties counted votes differently, the recount violated the Equal Protection of the 14th Amendment.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.



NOWHERE MCQ, DID SCOTUS FIND THAT THAT THE FLORIDA SUPREME COURT FAILED TO FOLLOW FLORIDA LAW, nowhere.

This was activism on Scalia’s part, because activism suited his ideology at that moment.

Cap
 
Written By: Captin Sarcastic
URL: http://
Frankly, legal issues have been one place where I find myself siding more with the GOP. Although the political side of me often agrees with what a liberal activist court does, the constitution really is as close to a sacred secular document as what we have. Nonetheless, I’m not convinced that there is a rising group of conservative activist justices who are as bad if not worse. My read of the constitution makes me a rather radical civil libertarian on most issues, and thus I disagree with the court’s "conservatives" in terms of legal philosophy. But activism from the bench is dangerous, these are nine justices potentially overturning democratic decisions with really stretched interpretations...it’s not a good precedent.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Scalia’s strict constructionism fails to allow for the possibility of an evolution in uncderstanding how age-old precepts impact on modern life. Issues arise today that the founding fathers never dreamend of. Even Scalia has to be pretty creative in fitting some of his rulings into his ’strict’ framework.

Not true at all. Scalia’s viewpoint allows for any sort of conceptual "evolution". He states correctly that it’s up to the people (via their legislatures) to decide what shape those "evolutions" should take.

You know the system is f*cked up when Justices on the supreme court are getting fan mail and petitions from thousands of citizens to try to influence them to "interpret" in a certain way or decide this way or that.

This view, that the proper way for the constitution to change is by the decision of 5 lawyers out of 300 million people, is entirely antithetical to the concept of the rule of law.

Even aside from the philosophical contradiction of a Politburo of 5 unchecked lawyers deciding what the law will be within a Democratic system, mathematically the chances of horrendous mistakes are 1000 x’s’s more likely with such a tiny, similar-minded group of individuals making decisions that impact such large and chaotic systems.
 
Written By: Fyro
URL: http://
NOWHERE MCQ, DID SCOTUS FIND THAT THAT THE FLORIDA SUPREME COURT FAILED TO FOLLOW FLORIDA LAW, nowhere.
Cap, you do realize there were 2 separate decisions in Bush v Gore, right?

The first found "that the Florida recount was unconstitutional, noting significant problems in the uneven way the votes were being recounted. The majority opinion cited, in particular, the use of differing standards; the combination of full manual recounts for some counties and for selected precincts within Miami-Dade County with partial recounts for other counties and for the rest of Miami-Dade; and the perceived impracticality of the process ordered by the Florida court."

That was a 7-2 majority by the way.

It also found that "the opinion stated that the state-wide standard ("if the voter’s intent is clear, the vote should be counted") could not guarantee that each county would count the votes the same way, and held that this violated the Equal Protection Clause of the United States Constitution."

In the second decision the Court ruled 5-4 "that no constitutionally-valid recount could be completed by the December 12 deadline set in statute, effectively ending the recounts."

The statute cited is a FL statute.

IOW they weren’t following their own law but instead trying to make an exception.
 
Written By: McQ
URL: http://www.qando.net/blog
In the second decision the Court ruled 5-4 "that no constitutionally-valid recount could be completed by the December 12 deadline set in statute, effectively ending the recounts."
Nonsense McQ, The Florida Supreme Court ruling offered a way to honor the intent of Florida law, by citing this one piece of Florida law teh Supreme Court DENIED the opportunity to honor the actual intent.

If the safe harbor element of the decision were valid, it would have stood alone, frankly, if the Equal Protection element were valid, it could have stood alone, if the decision in toto were valid, it should be precedent.

It wasn’t, it wasn’t, and it isn’t, not to mention the fact that the very same SCOTUS that killed the recount because of time issues, stayed the recount, killing the very time that could have been used to meet the safe harbor requirements AND the intent of Florida election law.

If you were right, and Scalia were a constructionist, he would NEVER ever agree with this SCOTUS ruling overturning a state supreme court decision on a state law, if, as I say, Scalia is an ideologue who espouses constructionism when it is convenient to his ideology, he WOULD support the Bush v Gore decision. I can’t even believe you have fooled yourself into thinking that a SCOTUS ruling that a State Supreme COurt is less capable of ruling on STATE laws than a federal court, and reconciling this with your imagining that Scalia is a constructionist.

States rights! Yeah, when they like what the state is doing, otherwise, ideologue activist robed masters.

I don’t mind activism, Brown v TKBOE is an example of activism, overturning years of precedence and numerous laws, and I support it completely.

I am not opposed to the Bush v Gore decision because it was an activist decision, I oppose it because it was blatantly wrong.

Cap
 
Written By: Captin Sarcastic
URL: http://
ALL YOU SCALIA CLUB MEMBERS:

You are all missing the point entirely.
The Constitution doesn’t say, in so many words, that ’it is a living document’, nor does it say that it is not. Almost every pharase of what it does say can be interpreted in different ways.

Scalia, for example, stated that a law banning flag burning would be unconstontitutional becasu flag burning falls under the free speech precept. Surely, you can see that arguments could arise about what actions should be interpreted as ’speech", because such actions are not enumerated in the Cosntiturion.

Why would you expect all judges to have the same philosophy of constitutional law? Even the founding fathers would disgaree among themselves
were they around to rule on the issues of the day.

Our best hope is to NOT have all nine cut from the same cloth, so that our laws don;t get too skewed in one derection or another.

Activism from the bench occurs when a judge interprets the constitution in ways that you don’t agree with.

My main gripe with Scalia is not that he often rules differently than what I would like, but that he is incapable of accepting that there can be legitimate differences of opinion (this from interviews and panel discussions).

There is something about the authoritarian approach to issues that just makes my blood boil.



 
Written By: Laime
URL: http://
The Florida Supreme Court ruling offered a way to honor the intent of Florida law, by citing this one piece of Florida law teh Supreme Court DENIED the opportunity to honor the actual intent.
Now you’re arguing law. You said they were not cited for not following their own law. You were wrong. Whether you agree with the court’s ruling or not isn’t germane to the point.
 
Written By: McQ
URL: http://www.qando.net/blog
Activism from the bench occurs when a judge interprets the constitution in ways that you don’t agree with.
Again, you get it wrong. Activism occurs when a) the court choses to involve itself with things that are outside it’s charter and b) when it attempts to legislate from the bench.
 
Written By: McQ
URL: http://www.qando.net/blog
MCQ: "Activism occurs when a) the court choses to
involve itself with things that are outside
it’s charter and b) when it attempts to
legislate from the bench."

Come on, MCQ. It’s about deciding what is and is not outside of its charter,for heaven’s sake.

’Legislating from the bench’ is just another slogan for ’judicial activism’ and, again, exists in the eye of the beholder.

What is so difficult about accepting that the same text can be interpreted in different ways?
I accept that you and Scalia have one interpretation. I also accept that other legal minds have a different interpretation. To do otherwise would be tantemount to denial of reality. There simply and undeniably exist different philosophies on Constitutional law.






 
Written By: Laime
URL: http://
What is so difficult about accepting that the same text can be interpreted in different ways?
That’s not the argument, no matter how many times you say it.

It is about what they are charged with doing and even more, what is none of their business. When they get into the "none of their business" side, they are engaging in activism.
 
Written By: McQ
URL: http://www.qando.net/blog
Now you’re arguing law. You said they were not cited for not following their own law. You were wrong. Whether you agree with the court’s ruling or not isn’t germane to the point.
The legal argument is irrelvant, the jurisdictional argument is relevant to whether this ruling was activist or constructionist, Scalia ruled that the Supreme Court has jurisdiction to rule over a state court on a question of state law, that is patently activist and totally antithetical to constructionism.

Florida had contradictory provisions, to determine the intent of the voter and meet the safe harbor deadline. The safe harbor deadline is a favor to Congress and has zero impact on whether the Florida election results are accepted, on the other hand, failing to determine the actual outcome of the election DOES have an impact on the validity of the results, so the Florida Supremes gave greater weight to an accurate vote count over the safe harbor provision, interpreting this to be the intent of the legislature that passed the law.

Whatever the Florida Supremes decision was, it was the highest ruling on state law, until or unless it violated the US COnstitution. That’s why SCOTUS came up with the bogus "this train only" 14th Amendment Equal protection clause violation, which if applied as precedent would invalidate every national election is US history.

Face it McQ, you like the constructionist rhetoric of Scalia the ideologue.

Cap
 
Written By: CaptinSarcastic
URL: http://
The legal argument is irrelvant, the jurisdictional argument is relevant to whether this ruling was activist or constructionist, Scalia ruled that the Supreme Court has jurisdiction to rule over a state court on a question of state law, that is patently activist and totally antithetical to constructionism.
That’s a specious argument, easily destroyed:

Say that California passes an initiative legalizing slavery. And California’s Supreme Court rules that since the initiative was voted on properly, it stands. Are you arguing that a constructionist would NOT think the US Supreme Court could rule on that law?

Of course not.

A constructionist would hold that the states are generally free to make and rule on their own laws to the extent that they conform to the US Constitution.

By the way, one part of the ruling in Bush v. Gore was whether Florida’s ruling conformed to the US Code on elections (it did not). And if you look at the dissent of Florida’s Chief Justice on Gore v. Harris, he clearly points out that SCOFLA’s ruling was crafted out of thin air, and not based on any law that existed in Florida as of November 7, 2006.

 
Written By: steverino
URL: http://steverino.journalspace.com/
The legal argument is irrelvant, the jurisdictional argument is relevant to whether this ruling was activist or constructionist, Scalia ruled that the Supreme Court has jurisdiction to rule over a state court on a question of state law, that is patently activist and totally antithetical to constructionism.
This particular argument isn’t about activism or construtionism. It’s about your statement that they [FL court] were not cited for not following their own law.

They were.
 
Written By: McQ
URL: http://www.qando.net/blog
What is so difficult about accepting that the same text can be interpreted in different ways?
================================================
MCQ: "That’s not the argument, no matter how many
times you say it."

THIS IS PRECISELY MY ARGUMENT.

Either you are addressing yourself to someone else, or you haven’t read what I said before jumping in to dispute me by repeating yourself over and over.
 
Written By: Laime
URL: http://
Say that California passes an initiative legalizing slavery. And California’s Supreme Court rules that since the initiative was voted on properly, it stands. Are you arguing that a constructionist would NOT think the US Supreme Court could rule on that law?
There IS a Constitutional question here. The law WOULD be unconstitutional, and SCOTUS should rule as such, but barring any Constitutional questions, the Supreme COurt has NO jurisdiction to tell states how their own courts should interpret their own laws.

A more appropriate analogy would be if California had a law passed that said that automobiles must be insured, a person self insures and is convicted in court for not having proper insurance, that person appeals to federal court and for some reason it goes on to SCOTUS, and SCOTUS DECIDES that the California court did not interpret CALIFORNIA law correctly and reverses their ruling. THAT WOULD BE ACTIVISM, and analogous to the Bush v Gore decision.
A constructionist would hold that the states are generally free to make and rule on their own laws to the extent that they conform to the US Constitution.
The SCOTUS ruling in Bush v Gore was that the recounts violated the Equal Protection clause because not every citizens votes were counted in the same manner across the state. No state counts each citizens votes in the same manner across their state, and SCOTUS knew this, which is why they put the "this train only clause" in their decision. So you think it is constructionist to rule that in one case a standard should apply (Equal Protection for vote counting methodology) and this standard should never again be applied this should not be allowed to be used as precedent? If that’s constructionist, then I’m a neo-con.
This particular argument isn’t about activism or construtionism. It’s about your statement that they [FL court] were not cited for not following their own law.
This argument began with my assertion that Scalia was activist when it suited him, and an example was the Bush v Gore decision, if you want to say that you changed the subject to the whether the Florida Supreme COurt failed to follow Florida law, fine, I’ll dispense with your revised argument and we can get back to the subject of Scalia the ideologue who decided that it is within the scope of SCOTUS to rule over state court interpretations of state laws and whether that is an activist ruling or constructionist.


Let’s recap...
Cap said "Bush v Gore - most ridiculous minority decision on top of a ridiculous majority decision, both of which Scalia supported. Pure activism."
McQ responded, "What, that Florida should follow Florida law and not make new law up on the fly?"
Cap yelled, NOWHERE MCQ, DID SCOTUS FIND THAT THAT THE FLORIDA SUPREME COURT FAILED TO FOLLOW FLORIDA LAW, nowhere.
McQ responded, - In the second decision the Court ruled 5-4 "that no constitutionally-valid recount could be completed by the December 12 deadline set in statute, effectively ending the recounts."

The statute cited is a FL statute.

IOW they weren’t following their own law but instead trying to make an exception.
WRONG! The ruling by the Florida Supreme COurt was made on December 8, and the recounts were beginning, to be concluded by December 12. SCOTUS issued an injunction within hours to STOP the recount and gave their ruling on December 12, having wasted all of the remaining time, and effectively ending the recounts. So NO, the FLorida Supreme Court was not found to have violated even this minor element of Florida election law.
The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court’s conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn’t a constitutional argument - it is an unapologetic defense of judicial activism.


Scalia the activist ideologue, when it suits him, and Scalia the contructionist ideologue when it suits him, judicial philosophy is secondary, ideology is primary, otherwise he would not have signed on to a ruling that denied the states right to interpret their own laws, or that bogus Equal Protection argument.
Justice Scalia’s views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants’ rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states’ rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it’s been interpreted to block suits by a state’s own citizens - something it clearly does not say. How to get around the Constitution’s express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia’s reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Conservative politicians insist that courts should defer to the democratically elected branches, but conservative judges do not seem to be listening. The Supreme Court’s conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans’ 14th Amendment equal-protection rights. Congress must prove in many cases that the law it passed is "congruent" and "proportional" to the harm being addressed. Even John Noonan Jr., an appeals court judge appointed by President Reagan, has said these new rules - which Justice Scalia eagerly embraces - reduce Congress to the level of an "administrative agency."

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

The inconsistency of the conservative war on judges was apparent in the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist courts, does not want to investigate the federal trial judge and the United States Court of Appeals for the 11th Circuit for judicial activism, but for the opposite: for refusing to overturn the Florida state courts’ legal decisions, and Michael Schiavo’s decisions about his wife’s medical care.

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court’s conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn’t a constitutional argument - it is an unapologetic defense of judicial activism.

When it comes to judicial activism, conservative judges are no better than liberal ones - and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them.
Cap

 
Written By: CaptinSarcastic
URL: http://
MCQ:
"When they get into the "none of their business" side, they are engaging in activism."
==
Again, this is making a judggment call, i.e. that certain rulings have not been their business to make.

THERE ARE FIFFERENT OPINIONS ON WHAT IS AND IS NOT THEIR BUSINESS.
you seem to be able to think ONLY from the standpoint that your viewpoint is a given.
Nor so for others. Others still can step back and see rulings from several different angle.

 
Written By: Laime
URL: http://

 
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