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News Judicial activism?

  1. Jun 7, 2005 #1


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    The personal views of judges has to affect the angle they view an issue. It at least affects their starting positions on issues. But do judges decide issues based on ideology or their view of the law? In other words, is the issue of liberal/conservative judge appointees overblown by Congress?

    Greer would have been considered a conservative, evangelical Christian prior to the Schiavo case. His decision was clearly based more on his interpretation of laws than his personal ideology.

    The Supreme Court's decision on medical marijuana was another surprising twist. The USSC ruled 6-3 that federal drug laws superceded state drug laws, effectively banning medical marijuana. The dissenters? Thomas, Rehnquist, and O'Connor. Not exactly the three you would have expected to support marijuana use. Their dissent, especially Thomas's, was based on their idea that the power of the federal government should be limited.

    I especially liked Thomas's dissent:
    Who is appointed as a federal judge, especially one on the USSC, is an important issue for Congress to consider, but, barring a history of allowing personal ideology to affect judicial decisions, I think the personal ideology of a judge is blown up a little bigger than life in the interests of fighting the Republican/Democrat war that Congress has seemed to be so engrossed in over the last decade.
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  3. Jun 7, 2005 #2


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    I would characterize it a little differently, but otherwise I agree with your thesis. The way I see it, the vast majority of issues (the Schaivo case and the medical pot case included) are so cut-and-dried that the personal politics of the judge aren't a factor. Like you said, Greer would have been characterized as right wing before the Schaivo case - but he would have had to be a real hardcore nut to rule any other way in that case. The case was just too clear-cut.

    Some issues can be more difficult, but often the deciding factor is often based on legal minutia rather than the political/moral question. The Schaivo case again: the issues brought up by the family/government were largely irrelevant - to the court, it was a simple custody case.

    About the only issue I can think of where politics will play a role is with abortion - but I don't consider that to be a major issue today.
  4. Jun 7, 2005 #3


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    Great post. I have tremendous respect for Greer because he not only made a decision based on the law, but did so contrary to pressure from a governor, the legislature, and President of the United States.

    In regard to the recent ruling on marijuana, it was a ruling on who should have authority--the states versus federal government--not whether it should be legal for medical purposes. O'Connor has always been pro-state, which is consistent with her dissent.

    With reference to Bush's three judicial nominees that are being allowed through, time will tell whether they will apply the law versus try to influence law. IMO it is overblown with regard to the judiciary in general, however activist judges should still be of question.
  5. Jun 7, 2005 #4
    The Supreme Court judges handed a well thought decision. But as a rule, they do follow their own idealogy, and one CAN predict with some level of accuracy how each might decide on a particular issue. So appointees should be carefully chosen, with broad balance in views. They were clear that this issue is a matter for Congress and reconsideration of the reach of the Federal Controlled Substances Act. When that Act was drafted some 70 years ago, its framers had no reason to believe any of the substances might someday be discovered to have "valuable or healthful" qualities. Plus, they also knew it could later be amended.

    As I wrote in my forum post, gasoline would be legal to drink if a person thought it might aid their health. But who would ever think a person would do so. Hence, no law against it. That is why this issue must go before Congress as a "right to freedom of health choice," which has not been tested, and the Act could be amended accordingly. Otherwise, I suspect this issue will again go before the USSC as a constitutional right to health choices issue.

    Presently, I believe it would be too difficult and time consuming to get marijuana classified and regulated as a drug under the FDA. The easier path would be as a consitutional right to health choice issue, which I believe the USSC would be hard pressed to deny. It would also send a chilling signal to the health industry and present far reaching powers of the FDA. But something must give. Health care and costs (esp. Medicare/baby boomers) assignment are on a collision course for a meltdown within 10 years.
  6. Jun 7, 2005 #5


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    I definitely agree with that. Most any judge you can look at will be all over the place when it comes to ideological mapping but when it comes to the legal mapping, they are pretty much in the same place (strict vs. leniant on the laws). Their leniancy or strictness is a better definition as to how most judges seem to act as opposed to liberal/conservative ideologies.
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