Supreme Court Justice Scalia found dead
Discussion
JagLover said:
TTwiggy said:
It's rather puzzling that this forum generally holds politicians of all hues in almost complete contempt, yet when it comes to the passing of laws some seem keen to hand over even more power to this much-maligned group.
The worst politician has one crucial advantage over the best judge, we can kick them out if we don't like the job they are doing.
JagLover said:
Err no
The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Errrr, OK, errr, errrr. The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Isn't that what they do now in the UK? I checked the US, and the judges interpret the law, as judges do everywhere.
Halb said:
JagLover said:
Err no
The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Errrr, OK, errr, errrr. The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Isn't that what they do now in the UK? I checked the US, and the judges interpret the law, as judges do everywhere.
Sway said:
Can Supreme Court judges create or remove laws? My layman knowledge suggests not - they clarify and interpret specific cases, where typically there is a conflict between the literal interpretation of multiple laws - driven by the defence citing one aspect of law in defence and the prosecution citing a different law to convict. Kicked up the system, eventually someone has to decide how the two laws stack up against each other, and what each bit of legislation means practically in detail.
https://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_ConstitutionWhat the US judges can do.
Judicial
Determines which laws Congress intended to apply to any given case
Determines whether a law is unconstitutional. However, this is not a power given in the constitution. It was 'created' in Marbury v Madison (1803)
Determines how Congress meant the law to apply to disputes
Determines how a law acts to determine the disposition of prisoners
Determines how a law acts to compel testimony and the production of evidence
Determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.)
Polices its own members
"One may claim that the judiciary has historically been the weakest of the three branches. In fact, its power to exercise judicial review—its sole meaningful check on the other two branches—is not explicitly granted by the U.S Constitution. The U.S. Supreme Court exercised its power to strike down congressional acts as unconstitutional only twice prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). The Supreme Court has since then made more extensive use of judicial review."
Poor constructed and worded laws give more leeway for judges.
Poorly drafted legislation is more commonplace than it used to be. Dare I mention that legislation used to be drafted by lawyers, sometimes eminent ones (some C19 statutes drafted by distinguished C19 jurists have survived without the need for substantial amendment for over 100 years). Nowadays legislation is often drafted by people who have little experience of how to draft clear rules.
Even well drafted legislation cannot usually provide in detail for every possible eventuality, and so some interpretation will always be required. Human life being complicated, and society ever changing, it is impossible to have a uniform black letter code that covers everything.
Even well drafted legislation cannot usually provide in detail for every possible eventuality, and so some interpretation will always be required. Human life being complicated, and society ever changing, it is impossible to have a uniform black letter code that covers everything.
Edited by anonymous-user on Monday 15th February 17:43
There are two problems with statutory instruments. The first is that there are too many of them. There is insufficient Parliamentary scrutiny of these instruments.
The second is that the instruments are sometimes drafted by departmental civil servants who are not lawyers, and this can lead to poor drafting.
The second is that the instruments are sometimes drafted by departmental civil servants who are not lawyers, and this can lead to poor drafting.
We're going to get a liberal leaning replacement for Scalia whether Obama's nominee gets confirmed or Hillary's does so the balance will swing. Someone suggested that if the Senate filibuster on Obama's choice Clinton and Sanders should announce that they will nominate Obama! Wouldn't that be fantastic. Ted Cruz's head would explode, along with a few others!
Breadvan72 said:
Poorly drafted legislation is more commonplace than it used to be. Dare I mention that legislation used to be drafted by lawyers, sometimes eminent ones (some C19 statutes drafted by distinguished C19 jurists have survived without the need for substantial amendment for over 100 years). Nowadays legislation is often drafted by people who have little experience of how to draft clear rules.
Even well drafted legislation cannot usually provide in detail for every possible eventuality, and so some interpretation will always be required. Human life being complicated, and society ever changing, it is impossible to have a uniform black letter code that covers everything.
I agree, I wasn't suggesting that poorly worded laws would be the only reason for interpretation. The ebb and flow of humanity and it's culture, it's all part of the Shove, it's all good. Everything exists on a sliding scale and that seems to be the best method we have at the moment. Life moves on, sometimes we're ahead, sometimes we're behind.Even well drafted legislation cannot usually provide in detail for every possible eventuality, and so some interpretation will always be required. Human life being complicated, and society ever changing, it is impossible to have a uniform black letter code that covers everything.
unrepentant said:
We're going to get a liberal leaning replacement for Scalia whether Obama's nominee gets confirmed or Hillary's does so the balance will swing. Someone suggested that if the Senate filibuster on Obama's choice Clinton and Sanders should announce that they will nominate Obama! Wouldn't that be fantastic. Ted Cruz's head would explode, along with a few others!
That would be most amusing. RobinOakapple said:
The only system apart from democracy that I would support is one which put me in sole charge. That's unlikely, and I'm not sure I would want it anyway, so elected politicians making the laws is the best system available.
I agree with this. Democracy is s
t. But it's better than all the alternatives.Halb said:
JagLover said:
Err no
The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Errrr, OK, errr, errrr. The judiciary should interpret laws and a constitution as they were written. If the people wish to alter those laws they can do so either indirectly, by which parties the vote for, or directly when given the opportunity through a referendum.
Judicial "activism" is another word for a Oligarchic form of government.
Isn't that what they do now in the UK? I checked the US, and the judges interpret the law, as judges do everywhere.
"philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."
There are many examples of Judicial activism from America hence why the appointment process has become so politically charged.
The obvious examples are as follows.
Roe vs wade
A rather tenuous connection was established to justify abortion according to a "right to privacy". Now whether you agree with abortion or not (and personally I do before the foetus is fully developed) it is a gross abuse of the democratic process for judges to decide it should be fully legalised rather than the voters, based on their own views rather than the Constitution as written. The fact that this was judge driven, based on absolute rights, rather than a new law(as in the UK) meant you ended up with abominations like partial birth abortion in the US.
The dissenting opinion is well worth citing
white said:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court
An example from the other side of the political spectrum was the striking down of the campaign finance reform in 2010.My point is that whether you agree with the judges or not it should not be them making law but the people's elected representatives or the people themselves.
"Activist" judges seem to be part of a general trend of elites taking back power from the people and share with unelected transnational bureaucracies a contempt for the views and opinions of the common man.
Don said:
RobinOakapple said:
The only system apart from democracy that I would support is one which put me in sole charge. That's unlikely, and I'm not sure I would want it anyway, so elected politicians making the laws is the best system available.
I agree with this. Democracy is st. But it's better than all the alternatives.JagLover said:
An example from the other side of the political spectrum was the striking down of the campaign finance reform in 2010.
My point is that whether you agree with the judges or not it should not be them making law but the people's elected representatives or the people themselves.
"Activist" judges seem to be part of a general trend of elites taking back power from the people and share with unelected transnational bureaucracies a contempt for the views and opinions of the common man.
Well I can see it's not open and shutMy point is that whether you agree with the judges or not it should not be them making law but the people's elected representatives or the people themselves.
"Activist" judges seem to be part of a general trend of elites taking back power from the people and share with unelected transnational bureaucracies a contempt for the views and opinions of the common man.
https://en.wikipedia.org/wiki/Judicial_activism#De...
Seems there is debate on the debate.
I personally do agree with abortion, because I agree with he right of the individual, which is what RoevWade seems to be in the eyes of the judges looking at the US constitution. I don't hold with the view that it was an example of activism, seeing this stuff is very subjective and judges have for many generations had to deal with what is put on front of them on an ad hoc basis.
Clearly the Senate can block or slow-walk the nomination although the betting is that if the Dems win the Presidency, likely the Senate majority could go to the Dems also.
The dilemma for the GOP is if Obama puts up a centrist candidate.. They could block it, and if they lose the senate majority they also lose the chair of the judiciary committee. If the candidate is not too doctrinaire, likely could become the swing vote rather than an automatic liberal.
If the Dems win, they they can nominate to replace Scalia with a more liberal candidate, and it is also likely that the next President will also nominate to replace Ginsberg who is old and in precarious health. In the case there is a youthful long term liberal majority.
The dilemma for the GOP is if Obama puts up a centrist candidate.. They could block it, and if they lose the senate majority they also lose the chair of the judiciary committee. If the candidate is not too doctrinaire, likely could become the swing vote rather than an automatic liberal.
If the Dems win, they they can nominate to replace Scalia with a more liberal candidate, and it is also likely that the next President will also nominate to replace Ginsberg who is old and in precarious health. In the case there is a youthful long term liberal majority.
Halb said:
Well I can see it's not open and shut
https://en.wikipedia.org/wiki/Judicial_activism#De...
Seems there is debate on the debate.
I personally do agree with abortion, because I agree with he right of the individual, which is what RoevWade seems to be in the eyes of the judges looking at the US constitution. I don't hold with the view that it was an example of activism, seeing this stuff is very subjective and judges have for many generations had to deal with what is put on front of them on an ad hoc basis.
Many people agree with abortion under certain circumstances.https://en.wikipedia.org/wiki/Judicial_activism#De...
Seems there is debate on the debate.
I personally do agree with abortion, because I agree with he right of the individual, which is what RoevWade seems to be in the eyes of the judges looking at the US constitution. I don't hold with the view that it was an example of activism, seeing this stuff is very subjective and judges have for many generations had to deal with what is put on front of them on an ad hoc basis.
In the UK parliament listened to the concerns of voters and legalised abortion up to 28 weeks (later reduced to 24 weeks in 1990 except in cases where it was necessary to save the life of the woman or there was evidence of extreme fetal abnormality). There are occasional debates over whether that threshold should be reduced but abortion is hardly a pressing issue in the UK.
In America the Supreme Court imposed it by twisting the Constitution to suit their needs and abortion has been one of the key issues dividing left and right in the so called "culture wars". If wikepedia is any guide only 34% of Americans are satisfied with their abortion laws.
I know what process I think is preferable and it is rule by the people not the oligarchy.
RDMcG said:
Clearly the Senate can block or slow-walk the nomination although the betting is that if the Dems win the Presidency, likely the Senate majority could go to the Dems also.
The dilemma for the GOP is if Obama puts up a centrist candidate.. They could block it, and if they lose the senate majority they also lose the chair of the judiciary committee. If the candidate is not too doctrinaire, likely could become the swing vote rather than an automatic liberal.
If the Dems win, they they can nominate to replace Scalia with a more liberal candidate, and it is also likely that the next President will also nominate to replace Ginsberg who is old and in precarious health. In the case there is a youthful long term liberal majority.
The dems won't win the senate this time around as not all the seats are up for election. They have 46 (with the 2 indy's) so need 5 GOP senators to vote with them or a number to abstain. The GOP would try to filibuster but the public have had enough of that BS so they would come under intense pressure to get it done after a while. The senate is usually more sensible than the house on these matters. Justices are appointed for life so Ginsberg would have to retire (or die) to be replaced.The dilemma for the GOP is if Obama puts up a centrist candidate.. They could block it, and if they lose the senate majority they also lose the chair of the judiciary committee. If the candidate is not too doctrinaire, likely could become the swing vote rather than an automatic liberal.
If the Dems win, they they can nominate to replace Scalia with a more liberal candidate, and it is also likely that the next President will also nominate to replace Ginsberg who is old and in precarious health. In the case there is a youthful long term liberal majority.
JagLover said:
Halb said:
Well I can see it's not open and shut
https://en.wikipedia.org/wiki/Judicial_activism#De...
Seems there is debate on the debate.
I personally do agree with abortion, because I agree with he right of the individual, which is what RoevWade seems to be in the eyes of the judges looking at the US constitution. I don't hold with the view that it was an example of activism, seeing this stuff is very subjective and judges have for many generations had to deal with what is put on front of them on an ad hoc basis.
Many people agree with abortion under certain circumstances.https://en.wikipedia.org/wiki/Judicial_activism#De...
Seems there is debate on the debate.
I personally do agree with abortion, because I agree with he right of the individual, which is what RoevWade seems to be in the eyes of the judges looking at the US constitution. I don't hold with the view that it was an example of activism, seeing this stuff is very subjective and judges have for many generations had to deal with what is put on front of them on an ad hoc basis.
In the UK parliament listened to the concerns of voters and legalised abortion up to 28 weeks (later reduced to 24 weeks in 1990 except in cases where it was necessary to save the life of the woman or there was evidence of extreme fetal abnormality). There are occasional debates over whether that threshold should be reduced but abortion is hardly a pressing issue in the UK.
In America the Supreme Court imposed it by twisting the Constitution to suit their needs and abortion has been one of the key issues dividing left and right in the so called "culture wars". If wikepedia is any guide only 34% of Americans are satisfied with their abortion laws.
I know what process I think is preferable and it is rule by the people not the oligarchy.
If only 34% are happy it's because many on the left would like the law to be more liberal. Roe V Wade was over 40 years ago and it's time that the religious right got the f
k over it and moved into the 21st Century. Gassing Station | News, Politics & Economics | Top of Page | What's New | My Stuff