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Re: Did he really just say that?!?
| quote: | Originally posted by Shakka
So, Joe Biden thinks we have a tri-cameral legislature in this country. Maybe somebody should send him a copy of the Constitution so he can figure out how all of this crazy law making stuff works.
Transcript from Face The Nation last Sunday...
http://www.cbsnews.com/htdocs/pdf/face_070305.pdf
What what what?!?! Did he just say that Supreme Court Justices get to make NEW LAW??? Take off shoe, insert foot. |
You can bash Biden all you want as far as I'm concerned. I'm sick of this slickster tryin' be the media darlin' for the Dems. when he does nothin' but give credit card companies a free pass on the corrupt bankruptcy bill that passed a few months back (most of their PO boxes are in his neck of the woods).
I do think, however, you get the gyst of what he was saying - that the ultimate say on the law is indeed the SC, not the circuit courts. And it is the SC justices that have overruling powers to change the law, or at the very least overturn a standing law (which by logical default creates new law).
It it interesting in examining who exactly does this the most - who tends to overturn existing law the most. It does seem that this very essence of re-writing laws or overturning existing laws is the very definition of "activist" judges, as the Far Right wingers decry, is it not? It also tends to be a favorite label of Right Wingers upon the so-called "liberal" judges - or at least those judges who tend not to rule in favor of wingnutters' beliefs. Indeed, the success of the wingers to label "activist" judges to liberalism is quite evident.
So whom would you expect in our current SC justices that would fit this bill of overturning existing law the most? Whom would best fit the label of "activist" judges on our current SC?:
| quote: | July 6, 2005
So Who Are the Activists?
By PAUL GEWIRTZ and CHAD GOLDER
Correction Appended
New Haven
WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.
In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.
Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?
Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.
Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.
Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.
These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.
Correction
Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.
Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.
http://www.nytimes.com/2005/07/06/o.../06gewirtz.html |
Hmmmm.....
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Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...
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