Judge Scalia on judges, and the Constitution

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By HOPE YEN, Associated Press Writer

WASHINGTON - Justice Antonin Scalia (news - web sites) criticized the Supreme Court's recent decision to strike down the juvenile death penalty, calling it the latest example of politics on the court that has made judicial nominations an increasingly bitter process.

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist (news - web sites) retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted.

Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

"Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution," said Scalia, who was appointed to the court by President Reagan in 1986.

He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren's political background. Warren was governor of California and the Republican vice presidential nominee in 1948.

"You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it's hard not to follow," Scalia said, in response to a question from the audience.

Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law.

"If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion.

"When we are in that mode, you realize we have rendered the Constitution useless," Scalia said.

Scalia, who has had a prickly relationship with the media, wasted no time in shooing away photographers from the public event five minutes into his speech.


"Could we stop the cameras? I thought I announced ... a couple are fine at first, but click click click click," Scalia said, impatiently waving the photographers off.

During a speech last year in Hattiesburg, Miss., a deputy federal marshal demanded that an Associated Press reporter and another journalist erase recordings of the justice's remarks.

The justice later apologized. The government conceded that the U.S. Marshals Service violated federal law in the confrontation and said the reporters and their employers were each entitled to $1,000 in damages and attorneys' fees.

quick civics lesson....

what checks does each branch have on the other?

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Originally Posted by xiannaix

quick civics lesson....

what checks does each branch have on the other?

Balance, what's your point?

Originally Posted by bfp

Balance, what's your point?

checks are supposed to create balance...

my question is.... "what checks, meaning what "power(s)", does each branch have, that it may exercise, in order to place a check on another branch in order to create that balance?"

[bfp]

Originally Posted by xiannaix

checks are supposed to create balance...

my question is.... "what checks, meaning what "power(s)", does each branch have, that it may exercise, in order to place a check on another branch in order to create that balance?"

I understand what powers each branch has, and what their sole purpose is, so go on, what are you trying to say? The judicial branch is in no position to legislate new policy as they have been lately, regarding schools, prisons, farm quotas, private sector hiring and firing, etc.

California voted a few years ago to keep marriage between a man and a woman, so what happens Friday? A judge claims that it's unconstitutional.

I'm trying to point out through inquiry what checks the Legislature and executive branches have on the Judicial....and my question was not at all directed towards you... apologies if it came across that way.... was meant to be addressed to A&P in general


So, what checks do they have?

[bfp]

Originally Posted by xiannaix

I'm trying to point out through inquiry what checks the Legislature and executive branches have on the Judicial....and my question was not at all directed towards you... apologies if it came across that way.... was meant to be addressed to A&P in general


So, what checks do they have?

I don't know, Compass? Bank One? Bank of America?

[Funkenstein]

Originally Posted by xiannaix

I'm trying to point out through inquiry what checks the Legislature and executive branches have on the Judicial....and my question was not at all directed towards you... apologies if it came across that way.... was meant to be addressed to A&P in general


So, what checks do they have?

From what I understand (as given by the fact that the Constitution lays out the plan quite fine and better than the Articles of Confederation did):

"The system of checks and balances placed in the U.S. Constitution is probably one of its most unique characteristics, and one of the reasons for the longevity of the government. Included within the Constitution are checks on the process of making a law, in which each branch can check the authority of the other. A bill can either originate in the executive or legislative branch, but must gain the approval of the other to continue onto a law. Even if the president vetoes a law, it can be approved by congress. The judicial branch guards against the constitutionality of all laws introduced either by the legislative or executive branch. There is never a time when the power to enact, execute and judge a law rests in one branch.

The strength of an executive branch, free to make war and ignore proposed legislation are clearly checked by the strength of Congress. If either the President or the legislative branch act in a way judged to be beyond their authority, the judicial branch can mark their actions as unconstitutional and prevent them from continuing."

-Excerpts from Sparknotes (G-d bless college learning and quick links)

I know that this is all Senior year Government class knowledge, but I had to refresh a bit myself. Overall, it is the different agendas taken by each person that create the balance within.

Originally Posted by rufuspfunk

From what I understand (as given by the fact that the Constitution lays out the plan quite fine and better than the Articles of Confederation did):

"The system of checks and balances placed in the U.S. Constitution is probably one of its most unique characteristics, and one of the reasons for the longevity of the government. Included within the Constitution are checks on the process of making a law, in which each branch can check the authority of the other. A bill can either originate in the executive or legislative branch, but must gain the approval of the other to continue onto a law. Even if the president vetoes a law, it can be approved by congress. The judicial branch guards against the constitutionality of all laws introduced either by the legislative or executive branch. There is never a time when the power to enact, execute and judge a law rests in one branch.

The strength of an executive branch, free to make war and ignore proposed legislation are clearly checked by the strength of Congress. If either the President or the legislative branch act in a way judged to be beyond their authority, the judicial branch can mark their actions as unconstitutional and prevent them from continuing."

-Excerpts from Sparknotes (G-d bless college learning and quick links)

I know that this is all Senior year Government class knowledge, but I had to refresh a bit myself. Overall, it is the different agendas taken by each person that create the balance within.

POTUS can veto Congress who can override POTUS....

what can either do to overrule a SCOTUS decision?

To my knowledge - there is only 1 thing that can be done and it has been done once...... Andrew Jackson once failed to enforce a SCOTUS ruling. Otherwise they are a branch unchecked by the other two. As such, they have given themselves a position of domination over the other two (with some cooperation through cowardice by the other two to be sure).

When a SCOTUS decision rests on "changing standards of decency" to change laws passed by elected legislators we've got tyrrany of the judiciary. The law in question may offend one's sensibilities - but "standards of decency" is NO legal standard it is a changing social standard that rests on nothing more substantial than the passions and winds of shifting public opinion. And that is exactly what the rule of law and stare decisis is established to prevent.

[Funkenstein]

Originally Posted by xiannaix

To my knowledge - there is only 1 thing that can be done and it has been done once...... Andrew Jackson once failed to enforce a SCOTUS ruling. Otherwise they are a branch unchecked by the other two. As such, they have given themselves a position of domination over the other two (with some cooperation through cowardice by the other two to be sure).

When a SCOTUS decision rests on "changing standards of decency" to change laws passed by elected legislators we've got tyrrany of the judiciary. The law in question may offend one's sensibilities - but "standards of decency" is NO legal standard it is a changing social standard that rests on nothiong more substantial than the pasions and winds of shifting public opinion.

Hmmmm. I didn't know that, but it does make sense. Time to scurry through and find out what it was over. The idea that like-minded individuals press together to make the "right" is what Scalia is pressing (if I am understanding him correctly). The problem is that when like-minded people (already within the system) join together, we as a whole lose out. Isn't that what you were describing within Michigan and its legal system (to a degree)?

[bfp]

POTUS can veto Congress who can override POTUS....

what can either do to overrule a SCOTUS decision?

To my knowledge - there is only 1 thing that can be done and it has been done once...... Andrew Jackson once failed to enforce a SCOTUS ruling. Otherwise they are a branch unchecked by the other two. As such, they have given themselves a position of domination over the other two (with some cooperation through cowardice by the other two to be sure).

When a SCOTUS decision rests on "changing standards of decency" to change laws passed by elected legislators we've got tyrrany of the judiciary. The law in question may offend one's sensibilities - but "standards of decency" is NO legal standard it is a changing social standard that rests on nothiong more substantial than the pasions and winds of shifting public opinion.

Speaking of the evolving constitution, Scalia notes:

To evolve, all you need is a legislature, you don't need a constitution to do that.

[Funkenstein]

Originally Posted by bfp

Speaking of the evolving constitution, Scalia notes:

To evolve, all you need is a legislature, you don't need a constitution to do that.

Now that to me is a dangerous statement.

Originally Posted by rufuspfunk

Hmmmm. I didn't know that, but it does make sense. Time to scurry through and find out what it was over.

The Trail of Tears....

Marshall ruled that the Cherokee's lands rights must be respected... Jackson said, "fuck you"

Originally Posted by rufuspfunk

The idea that like-minded individuals press together to make the "right" is what Scalia is pressing (if I am understanding him correctly). The problem is that when like-minded people (already within the system) join together, we as a whole lose out. Isn't that what you were describing within Michigan and its legal system (to a degree)?

not sure I understand your question...

Scalia is arguing that the court has adopted as a basis and foundation for its decision things that are not legal bases or foundations... it has usurpde a legislative role because certain laws offend there sense of justice not because they are unconstitutional....

a thing may be both offensive and constitutional.... eg - the Nazi parade in Skokie, Illinois could not be banned.

Originally Posted by rufuspfunk

Now that to me is a dangerous statement.

how come?

The UK has no "constitution."