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News Souter Confirms Republicans' Worst Fears

  1. Jun 16, 2010 #1

    russ_watters

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    This is disturbing.

    It has long been a conservative fear/criticism that liberal justices are "legislating from the bench" in what is often termed "judicial activism": in essence, writing the law instead of interpreting it. In a speech to this year's graduating class of Harvard, Souter acknowledged in shockingly explicit terms that this was, in fact, how he viewed his duty as a (now retired) USSC justice:
    http://news.harvard.edu/gazette/sto...ce-david-souters-speech/?loc=interstitialskip

    Not only is this an acknowlegement that he, as a matter of policy throughout his career, violated his oath, but it is an argument that this is the way it should be and a campaign for Obama to appoint a replacement for him who follows in his footsteps - and for the graduates of Harvard Law to do the same.

    Souter gives two examples, one being Plessy vs. Ferguson vs Brown vs Board of Education (the "separate but equal" cases):
    Here he's applying his own incorrect standard in order to prove his case, in essence assuming the outcome instead of arguing it. The second sentence requires a logical argument to support it: [in response] Why not? The answer, presumably, is that the judges of 1896 were racist and therefore used their own values to judge the issue - the same mistake Souter is saying he based his life's work on and should continue. But a faithful reading of the Constitution reveals that the flaw in the morality of the men of 1896, which certainly also existed in 1787, does not appear in the Constitution. The constitution guarantees equal protection under the law -a protection that was superflouously reiterated with the 14th Amemndment. So "separate but equal" was against the Constitution in 1896 and the court erred. It is shocking for him to argue that the court was correct in both 1896 and in 1954.

    Further, one of the racist justices is 1896 recognized his own duty and looked past his own racism in crafting a dissenting opinion:
    http://www.usatoday.com/news/opinion/forum/2010-06-16-column16_ST_N.htm

    And, of course, if a flaw exists in the Constitution, a process already exists and has proven successful for fixing those flaws. Though equal protection itself wasn't one of those flaws, slavery introduced others, such as the 3/5ths compromise.

    The above quote was paraphrased from an op-ed about the Souter speech, which also says:
    I couldn't agree more. Souter's model would have full national sovereignty residing in the hands of a panel of 9 lifetime-appointed rulers. His vision is not democracy and it is not what this country is about.

    [edit] Also, though not typically considered the "swing vote" because despite being appointed by/as a conservative he became fairly heavily grounded in liberalism, with the knowledge of the above, he should be considered in that light. And since many of his decisions were apparently based on an improper view of his mandate, a great many of the decisions of the court over the past 20 years must now be called into question.
     
    Last edited: Jun 16, 2010
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  3. Jun 16, 2010 #2

    Hurkyl

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    Either I fail at reading comprehension, or the quote that follows is a far cry from an acknowledgement in "shocking explicit terms" that Souter legislated from the bench.
     
  4. Jun 16, 2010 #3

    mheslep

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    These two excerpts:
    and
    strike me as tantamount admission of bench legislation, especially the second. If 'approved desires' means conflicts in the constitution, such as the 3/5 rule and equal protection, then he's off the hook. But I believe by 'desires' he means otherwise: legislation, societal norms.

    And this
    is a tendentious rationalization, ignoring the amendment process, allowing the judge to play hero, riding to the rescue of general language in need of his interpretation.
     
    Last edited: Jun 16, 2010
  5. Jun 16, 2010 #4

    turbo

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    Great! Another neo-con thread that will be tolerated on PF with insufficient parsing or moderation. Souter is not an idiot. He realizes that the Constitution has to be interpreted in light of the present time. That is not a revolutionary idea.

    The present-day's neo-con faction on the court has extended the natural rights of citizens to corporations, enabling them to pour billions of dollars into our elections and buy our government even more effectively than they have done in the past. Is that not "legislating from the bench", or is that perjorative label only applied to justices that value the rights of individuals?
     
  6. Jun 16, 2010 #5

    russ_watters

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    He gives the two models and then says which he uses and provides a long argument in favor of it. The traditional model is the self-explanatory "fair reading model", which he is clearly arguing against. What he's arguing for doesn't really have a name that he identifies, but he alludes to it with "criticism that the court is making up the law" and I gave the common descriptions such as "legislating from the bench" and "judicial activism". The fact that he doesn't apply a label to it shouldn't make it any less clear which model he is arguing for and which he is arguing against.

    The last two sentences I quoted are probably the most explicit where he is arguing that the "fair reading model" doesn't work and he does (and the court should do) something different.
     
  7. Jun 16, 2010 #6

    russ_watters

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    Since he uses separate but equal as his example, clearly he does mean societal norms (and personal opinions of judges), but I wouldn't let him off the hook even with those two clearly contradictory parts of the Constitution. When the Court finds a law that appears to contradict the Constitution but isn't crystal clear, it doesn't just strike the law down and wash its hands: it sends the law back to the legislature for clarification/rewriting, with an explicit explanation of where the contradiction or ambiguity lies and often even instructions for how to rectify the problem. The Court's responsibility when it comes to a contradiction/ambiguity in the Constitution itself is no different.
     
  8. Jun 16, 2010 #7

    Hurkyl

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    You're misreading him, I believe. His thesis is that "criticism that the court is making up the law" is a misinterpretation of reality. He believes such criticism is based on an oversimplified view that judging is little more than an exercise in unambiguous, consistent, deductive logic.

    This oversimplified view is what he labels as the "fair reading model".
     
  9. Jun 16, 2010 #8

    russ_watters

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    I never said he was.
    Then you should have no trouble referencing your claim or providing a logical argument for it.
    Legislating from the bench certainly does happen on both sides of the aisle, it just happens more from the left. That's why liberals argue in favor of it and conservatives argue against it.
     
  10. Jun 16, 2010 #9

    russ_watters

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    I'm not seeing a disagreement between you and me here. That he believes the "fair reading model" to be an oversimplified view of the duties of a judge is exactly what the issue is.

    Critics call it "legislating from the bench". He calls it part of his duties. Whever you label it, it is happening and he is acknowleging that he's doing it.
     
  11. Jun 16, 2010 #10

    Hurkyl

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    Just to clarify, you are making all of the following assertions?
    • There are no ambiguities in the law
    • The letter of the law overrules the spirit of the law
    • There are no conflicts between laws
     
  12. Jun 16, 2010 #11

    russ_watters

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    I'm going to research further and come up with more info about the subject, but please all note: I'm not the originator of this issue and I'm not making things up here. My interpretation comes primarily from the USA Today op-ed I linked in the OP. The writers are former (Republican) justice department lawyers.
     
  13. Jun 16, 2010 #12

    russ_watters

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    I am most certainly not making any of those assertions!
     
  14. Jun 16, 2010 #13

    Hurkyl

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    Those three assertions -- or even just invoking a single one -- are what I think he means by the "fair reading model".

    At the moment, I'm not particularly inclined to argue whether or not I'm right on that point. But can we agree that, if I do happen to be right, the speech is not disturbing?
     
  15. Jun 16, 2010 #14
    "Judicial Activism" has been going on for a couple centuries now. It happens more or less in different eras and under different courts. It is part of the job of the Supreme Court to "make" law. We get it from the british legal system and is generally referred to as "case law".

    If you do not like judicial activism perhaps you would be willing to give up those rights you have received due to it? Do you really need any of the Bill of Rights to protect you from the actions of your state? Should states be able to make abortion illegal? Do you value your "right" to privacy? Do you really care much if the police require probable cause to search your home or arrest you? Do you mind officers stopping you for no reason or do you think that they should at least require a reasonable suspicion that you have committed a crime in order to do so?
     
    Last edited: Jun 17, 2010
  16. Jun 17, 2010 #15
    The Federalist, No. 78.
     
  17. Jun 17, 2010 #16

    BobG

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    I think Hurkyl and TSA hit on what Souter was alluding to. The overwhelming majority of cases that make it to the US Supreme Court make it there because the Constitution isn't robust enough to give clear guidance to every possible situation that could arise.

    Some of the cases the US Supreme Court sees can be resolved by simply reading the Constitution and/or whatever legislation is involved.

    Most require some ambiguity, conflict, etc to ever make it to the US Supreme Court.

    For example, "prohibits the federal government from depriving any person of life, liberty, or property, without due process of law" sounds pretty straight forward until you have to sit down and decide what a person is and decide whether taking a 10% risk of being deprived is the same as a 100% chance of being deprived in the eyes of the law or decide whether loss of property and loss of life should be considered equal in the eyes of the law, etc.
     
  18. Jun 17, 2010 #17
    The most often discussed definition here is actually what constitutes "due process". We have protection from state government based on most of the Bill of Rights through the "Due Process" clause of the 14th amendment but it has taken over a century of judicial "activism" for us to get that far. Originally it was interpreted to mean merely that all persons should receive a "fair" trial, though without actually defining what constitutes a "fair trial".

    The "Right to Privacy" is a greater example as even the majority opinion for the decision that instituted it admitted that it is not something that could be pointed out in the constitution but that only by cross referencing several clauses could one find it hanging nebulously between the lines. Roe v. Wade being an extension of the "Right to Privacy" is all the more derivative.

    Miranda is still being argued among the justices within the last decade I believe. The Miranda decision itself says that it is not a right.

    Ensuing tangential discussion moved to https://www.physicsforums.com/showthread.php?t=411818
     
    Last edited by a moderator: Jun 22, 2010
  19. Jun 18, 2010 #18

    Roe vs. wade would be the classic example of legislating from the bench. Irregardless of your feelings on abortion, the arguments just aren't found in the constitution.

    That said, I do think it is important for judges to interpret the intent of the constitution when ruling, even if such intent is not explicitly found in the document.

    An example of a very ambiguous phrase is the general welfare clause, whose inclusion was controversial at the time of the constitution's writing. Taken literally, it can be used to justify any action the government wished to take, except those that are strictly forbidden (and practically this is how it is interpreted in modern times.) Of course most of the constitution's framers assumed such an interpretation would be absurd.

    I think the judiciary has done a good job in general of holding the government in check. I am curious, could people give me some examples besides Roe vs. Wade that they consider judicial overreach?
     
  20. Jun 18, 2010 #19

    Gokul43201

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    In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.

    Moderator's note: ensuing tangential discussion moved to https://www.physicsforums.com/showthread.php?t=411810
     
    Last edited by a moderator: Jun 22, 2010
  21. Jun 18, 2010 #20

    turbo

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    If we take Rand Paul at his word, he would prefer to roll back equal-rights legislation such that private entities would have the right to practice racial discrimination. I'm assuming that he would categorize relevant civil-rights decisions as "judicial activism", though you can draw your own conclusions.
     
  22. Jun 18, 2010 #21

    BobG

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    Which arguments?

    1) The right to privacy? The court acknowledged that and relied on a long history of case law - a large majority supporting an implied right to privacy, but with quite a few cases denying it or at least limiting it. A majority isn't a consensus, hence making this a legitimate case for the court to hear.

    2) The right for a state to regulate medical procedures? I agree that right isn't found in the Constitution. None the less, they didn't find regulating medical procedures as unconstitutional provided they served a legitimate interest. The justification for no restrictions on early abortions was partly based on the fact that they were as safe for the mother as childbirth was.

    3) The definition of a person? I agree that isn't found in the Constitution. The court once again used case law (plus a healthy dose of history) to decide there has never been a consensus on when human life begins. In fact, throughout history, most considered life as beginning when visible movement occurred or at birth. One could say the court used at least some judicial restraint by being careful not to define when life began in their ruling.

    4) While the court was careful to specifically not define when human life began, their rulings on when the state could consider the "potentiality of human life" would seem to practically define human life as beginning at viability and I agree that definition isn't found in the Constitution.

    I do agree this decision was "legislating from the bench" since there was no need to break pregnancy into trimesters and rule what type of restrictions could be placed on each trimester in order to decide this case. In fact, I think making up policy on when abortions are legal, restricted, or illegal is going far beyond what the Constitution allows the courts to do.

    They should have restrained themselves to either upholding the Texas laws or striking them down without taking the extra step they did. A little restraint would have also allowed them to stop safely at "no consensus on when human life begins" without immediately contradicting themselves by using viability as the standard.

    I'd also note that simply striking down the Texas law would have made have made abortions legal with no restrictions at least until Texas passed a new abortion law that finally did stand up to USSC scrutiny. Or perhaps some other state, since the states would be passing laws and having them struck down until they hit on a good one through trial and error. Suddenly the "legislating from the bench" argument becomes one of semantics, since one could say the court simply laid out some guidance on what states should consider if they hope to have their laws pass USSC scrutiny. (I'm not sure I like this rationale, but I at least understand the court's thinking.)

    I guess the problem I have with most "this was legislating from the bench" arguments is that they then go on to attack parts of the issue that the court should legitimately consider; not the part that really was "legislating from the bench".

    People use this argument whenever judges don't restrict themselves to a "fair reading of the Constitution" when deciding a case. Except not restricting themselves to a "fair reading of the Constitution" includes using precedents of case law, which is legitimate, in addition to actually creating new laws in their decision, which is not legitimate.

    In this case, I'm not so sure judicial restraint would have satisfied many people, since then the issue would have to be resolved point by point by court case after court case. It was at least expedient. (Not that satisfaction and expediency should be the number one goal of the US Supreme Court when those goals conflict with the court's role under the Constitution.)
     
    Last edited: Jun 18, 2010
  23. Jun 18, 2010 #22

    turbo

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    In the case of Roe v Wade, you'd have to crawl into the heads of the justices to figure out what was behind the decision. For certain, there was always an economic/class distinction that was well-known but poorly-publicized. Women from wealthy families always had access to safe, discrete abortions. Poor women didn't. They were either forced to bear the child (even if conceived through forced incest or rape) or undergo a very risky abortion in dicey conditions. The invocation of personal rights and privacy in regard to abortion was a smoke-screen, IMO, that allowed the court to side-step some potentially touchy motivations while righting a long-standing wrong.
     
    Last edited: Jun 19, 2010
  24. Jun 18, 2010 #23

    BobG

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    It definitely did start to have an impact on the violent crime rate about 18 years later, but that's interesting trivia that both pro-lifers and pro-choicers found to hot to touch. Pro-lifers, because it would seem to suggest abortion has good effects and pro-choicers because aborting mass numbers of those most likely to commit violent crimes seems like a pretty grisly solution.
     
  25. Jun 18, 2010 #24
    This is getting off topic, but what you are referring to was the civil rights act which was congressional legislation.
     
  26. Jun 18, 2010 #25
    It is the building of tenuous inference upon inference. Their is first the implied right to privacy, which is then extended as a right to medical privacy, which is then extended to cover privacy on the issue of abortion, which is then extended to define what types of abortion this right covers.

    This is certainly, "legislating" from the bench. It is striking down a state law on the basis of constitutional supremacy, while making a series of inferred jumps that are between the lines and based on case laws to basically decide the issue of abortion. This is not properly the province of the courts, but of the states. I can understand the argument of invoking the equal protection clause to set a federal standard, but that would be a matter for congress.


    EDIT: I recommend we keep this discussion limited to judicial overreach, and possibly how roe v. wade is or is not an example, as opposed to discussion of abortion itself.
     
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