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News Next US Supreme Court nominee?

  1. Dec 11, 2009 #1


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    It looks like US Supreme Court Justice John Paul Stevens will retire at the end of this term. Justices usually hire their law clerks a year out and Stevens has hired only one for 2010. Active Justices usually hire 3 or 4, while retired Justices only have one.

    Assuming Stevens hasn't just had a harder time than usual picking out law clerks, his departure will be a fairly significant one. He's the last WASP on the US Supreme Court (WASP being an old acronym for White Anglo-Saxon Protestant male). In the interest of diversity, shouldn't Obama look for a WASP to replace him? Or should he go further and look specifically for a candidate among the most under represented group in US Supreme Court history? There's never been an Evangelical Christian appointed to the US Supreme Court.

    Facetiousness aside (since I think the chances of Obama nominating an Evagelical Christian are absolutely nil), I think it's safe to say Obama will nominate a "judicial activist" - or, less perjoratively, a person that feels the interpretation of the Constitution has to evolve over time, just as US culture evolves. He voted against Roberts (a strict textualist) being confirmed, and explained his pick of Sotomayor with:

    In other words, the effects of laws on common people today is more important than the original text of the Constitution. Figuring out how that nominee's background will affect their future rulings on specific issues is a little tougher - or is it? Sotomayor, Scalia, and Our Six Catholic Justices

    Scalia would argue that a USSC Justice should be a strict textualist and, therefore, his/her past life experience doesn't matter.

    O'Connor would argue that past life experiences, and therefore diversity, is very important to the USSC.

    I think I agree with O'Connor. It's naive not to believe a nominee's complete life experience, not just their law classes, will affect their rulings on the US Supreme Court. By the way, I don't agree with the conservative's definition of judicial activism, nor do I agree with strict textualism. I think judicial activism is when the US Supreme Court hands down a ruling that goes beyond what was necessary for the case the court was deciding. Roe v Wade would meet that definition, by the way, since the court ruled on issues that weren't even part of that particular case.

    I'm pretty sure that Roe was in the first trimester of her pregnancy at some time during her pregnancy, however, and that seemed enough for the majority of the USSC to hand down it's particular ruling (in fact, the court used the vagueness of the case as an excuse to rule on all possibilities instead of an excuse not to take the case in the first place).
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  3. Dec 11, 2009 #2
    The problem with "judicial activists" isn't that they think the constitution should change as the times change, as that's obviously true.

    The problem is that they think they should bypass the constitution's built-in mechanism for change and do it themselves, so they don't have to be bothered with convincing other Americans that the change is appropriate.

    "Strict constructionist" is just a term commonly used to describe someone who thinks the constitution means what it says and should only be changed (amended) the legal way.
  4. Dec 11, 2009 #3


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    Sounds great, but it ignores almost the entire history of the evolution of democratic governments.

    Statutory law - laws passed by the legislature. It takes a long time to develop a mature legislative library of all-encompassing laws, especially when the culture keeps changing, rendering some statutes obsolete while creating the need for new statutory laws covering situations never before envisioned.

    Regulatory law - laws 'created' by the executive branch. In other words, regulations describing how the executive branch will enact the statutory laws passed by the legislature. Regulations should never create new law. None the less, the executive branch can come up with some creative interpretations of both common law and statutory law when developing regulations.

    Common law - laws 'created' by the court (i.e. - case law, or a history of how similar situations have been handled by the court in the past). It's entirely expected that the court will do it's best to figure out how to handle a situation when the statutory laws, regulatory laws, or both, conflict or fail to provide enough guidance on how to handle a particular situation.

    If the court's solution comes up short, the legislative body or the executive branch can fix that by creating new statutory or regulatory laws, just as the court can fix mistakes made by the legislative or executive branch by deciding a law violates either the Contstitution or common law.

    Stuff gets garbled for propoganda purposes. Strict constructionist or judicial activist isn't a binary condition. Check how broad a judicial decision is to determine if the judge(s) are judicial activists or not. One of the frustrations with many cases that go to the USSC is that observers anticipate an earth shattering decision, only to get a decision that's so narrow that it seems as if it can't possibly apply to any other case that is ever likely to go before court again. That's the way court cases are supposed to be decided. Courts seldom, if ever, make an earth shattering decision and common law winds up being a very slow evolutionary process, whose results are almost always quickly rendered obsolete by the legislative and/or the executive branch. (Hence, the "wrong" of the Roe v Wade decision was that it established case law for cases that were never brought before the court).

    I think the terms constructionist/activist are code words for something mostly unrelated. A strict textualist is someone who wants to overturn Roe v Wade. He ignores common law (including the offending decision they'd like to ignore - namely Roe v Wade) and re-interprets the Constitution themselves through their own reading of the Constitution. A judicial activist is anyone that supports Roe v Wade. In other words, pro-life individuals like to claim pro-choice individuals have to be in favor not just in the result of Roe v Wade, but in the process that led to the result, as well - ironically, pro-lifers deny the pro-choicers the opportunity to choose what parts of the Roe v Wade case that they like and/or dislike. Or, more likely, the more perjorative term is just reminding everyone that the Roe v Wade decision violated the traditional, if unspoken, principles of common law so badly that it deserves no protection under the system it abused so badly. It's in this vein that Congress asks nominees about their opinions on stare decisis - it's a way to ask about overturning Roe v Wade without requiring a nominee to pre-judge a case that he hasn't yet heard.

    In practice, all USSC Justices seem to believe in common law, since all of their decisions barely move the judicial landscape at all, regardless of whether a person agrees with their particular decision, meaning any questions about stare decisis and judicial activism are moot if considered literally. Those questions only make sense if one drops the pretense and accepts that Senators are asking the nominee whether they will overturn Roe v Wade or not.
  5. Dec 11, 2009 #4
    I didn't ignore it, I specifically addressed it. The constitution is different from statutes, regulations, and common law. It's the government's charter and it's only legitimate source of power. And the constitution itself specifically addresses how it can be amended to keep up with the times.

    Simply put, it is impossible for any branch of the federal government, or all three, to legally change anything whatsoever about the constitution. It's not up to the federal government how much power they are delegated. That is like the fox guarding the hen-house, which of course is exactly the way the fox wants it.
    Then you're using a completely different definition than I am.
    Last edited by a moderator: Dec 11, 2009
  6. Dec 11, 2009 #5
    A Constructionist, at least from my understanding, tries to adhere to what the Constitution is literally saying to the best of their ability.

    For example, the Constitution quite clearly divides the government into three branches. And it quite clearly, via the 13th Amendment, outlaws slavery. No question there. It quite clearly gives women the right to vote, via the 19th Amendment. Again, no question. Something like the ending of segregation, that was judicial activism. So if the Court ever overturned Brown v. Board (I think that was the case?), then the government would need to amend the Constitution to literally outlaw segregation.

    Judicial activism is dangerous overall because it means a court could overturn the decision later on. We wouldn't want slavery being outlawed or a woman's right to vote being secured to have been decided via judicial activism, for example.

    Areas where it can get a bit fuzzy are for example the 2nd Amendment. We have a right to bare arms. Okay, but how does one define "arms" exactly? Does that mean I can keep a nuclear weapon in my basement? A battle tank in the garage?

    Or protection against unlawful search and seizure. How does one define "search" and "seizure" exactly?

    Even if Roe v. Wade was ever overturned and the Constitution amended to say the woman has a right to abort, that would probably get a bit fuzzy. On the one hand, you have those who say the moment of conception makes it a human life. Then on the other extreme, there are those who say it is not a human life until the moment of birth.

    Then there's the in-betweens who say the moment of conception, the blastocyst I think it's called, is not an actual human, but that it most certainly is a human long before the actual birth, thus legalized abortion is okay early on, but would need to be limited to a certain point.
    Last edited: Dec 11, 2009
  7. Dec 11, 2009 #6
    Actually, you can have a battle tank in your garage. The only part of a battle tank that would be illegal would be the ammunition for the main gun and the 50 cal (or equivalent).
  8. Dec 12, 2009 #7


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    Good example. The 14th Amendment guarantees equal protection under the law. That doesn't literally ban "separate but equal" treatment and there was a case, Plessy v Ferguson, that affirmed that interpretation. The USSC went beyond the literal wording of the 14th Amendment and discarded case law in its decision on Brown v Board of Education.

    The Supreme Court had to go beyond the literal interpretation of the law and decide that it was impossible for separate facilities to ever be equal. You can't say citizens have a certain right, but set conditions that make it impossible for them to enjoy those rights.

    I think that's a common sense solution, even if the premise that separate can never be equal might be a little iffy and even if evaluating school systems is definitely beyond the scope of things the USSC court could decide.

    Unless every school was identical, any evaluation of a particular school would be too subjective to enforce. The USSC decision left it to the individual to decide which school they considered to be best for their kids instead of letting the government make a decision about the quality of schools.

    In one sense, it is definitely judicial activism since it makes bold claims about separate school systems never being equal - something the Court isn't qualified to evaluate. But it does so by pulling the government out of the decision making process and pushing the decision to the individual.

    Another good example is the "right to privacy". It's not literally protected by the Constitution, but is an implied right suggested (very strongly so) by the Bill of Rights and the 14th Amendment. Any decisions based on a right to privacy could technically be considered judicial activism, even though that's a "right" (even if implied) most Americans consider very valuable.

    If the courts are to function, you can't have a binary "constructionist or judicial activist" position. The judicial branch's role is to deal with the problems that occur when the written word interacts with human behavior and a certain amount of "activism" is unavoidable. There should be a minimalist approach to those situations and the court should try to limit it's decision just to the issue before it, not use a case as an excuse to create broad policies that go far beyond just the case currently being decided.
    Last edited: Dec 12, 2009
  9. Dec 12, 2009 #8


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    No, that was cynicism over the questioning court nominees typically go through, not a definition. When Senators ask those types of questions, it's hard to remain blind to the question they wish they could ask.
  10. Dec 12, 2009 #9
    The phrase the Fourth Amendment is "unreasonable searches and seizures."

    I'm surprised to hear someone find ambiguity in defining "search" and "seizure." I had thought that all disagreements were about the meaning of the word "unreasonable."
  11. Dec 12, 2009 #10
    You may be right and I have mixed that up, the debate being as you said, over the word "unreasonable." I'm pretty sure that word has been debated, I am not sure if in addition to it, "search" and "seizure" are as well.
    Last edited: Dec 12, 2009
  12. Dec 12, 2009 #11

    Ivan Seeking

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    Funny, huh; six out of nine!!! And all were appointed by non-Catholics.
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