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The Anti-Judiciary Movement in America

Discussion in 'Alley of Lingering Sighs' started by Late-Night Thinker, Apr 2, 2005.

  1. Late-Night Thinker Gems: 17/31
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    Could someone please explain what this is and why it is occuring...

    I understand that judges must, by definition, piss off half of the people they come into contact with...but what is the reasoning behind this political movement?

    It is something I do not understand yet see growing in importance.

    Please enlighten me...
     
  2. chevalier

    chevalier Knight of Everfull Chalice ★ SPS Account Holder Veteran

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    I suppose you have answered your question already. The judges piss people off and finally they receive the fruit of their labour. They have had enough of the dictate of judges who make up laws against the will of the people and, according to some, without accordance with the law.
     
  3. dmc

    dmc Speak softly and carry a big briefcase Staff Member Distinguished Member ★ SPS Account Holder Resourceful Adored Veteran New Server Contributor [2012] (for helping Sorcerer's Place lease a new, more powerful server!)

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    Not news. There has been a tug of war for almost two centuries on these issues. To don the Chandos hat, the Consitution, while strong in many areas, was deliberately vague in the area of the Courts and the power of the executive. The federal judiciary was not particulary defined, nor was the actual power of the Supreme Court really set up. John Marshall, perhaps the most famous chief justice of the Supreme Court, established its power way back when. Towards the end of his career, he was a very frustrated judge when Andrew Jackson decided to exercise a little of the executive power, and said something like "Marshall made his law, now see if he can enforce it." That was a battle between the executive and judicial branch when Jackson didn't like something that the Court had decided and felt that he wasn't going to have the executive branch do anything about it. (Just as a refresher, the legislative branch writes the law, the executive branch approves and enforces it, and the judicial branch interprets it and tells the other two when they are violating the Constitution. This system naturally implicates some measure of law "making" by the courts.)

    More recently, FDR threatened to pack the Supreme Court with his appointees if they did not rule the way he wanted on his social programs. He won that little battle, because up until then, no Court had ever interpreted the Constitution to, essentially, allow the federal government to take one person's money and hand it to another as charity.

    The underlying issue is that courts have the power to interpret the law, declare it unconstitutional, extend rights and privileges that are perhaps granted, and sometimes create new rights out of some pretty hazy supposition. That ticks off one or both parties or factions thereof, which leads to these periodic backlashes against the judges.

    It's all blather though. There isn't much of a chance that anything is going to change, especially as the 50 states each have their own court systems and constitutions as well.
     
  4. Ragusa

    Ragusa Eternal Halfling Paladin Veteran

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    [​IMG] This so called "movement" is agitation against judges in general, who have to obey the law and not the public opinion, or what the GOP hacks who conceived the "movement" consider right. That one judge ruling in the Schiavo case was quickly labled "the Clinton judge" Aaah, another liberal assault on life, I should have known :rolleyes:

    Prime example is the Schiavo case. The judge obeyed the letter of the law, as he should and had to. That is, even if he personally thought otherwise he had to decide that way, he didn't have a choice because that was the letter of the law. That's what rule of law means.

    The christian right disliked the result, and so they start smearing and intimidating judges, probably in order to make them more obedient with the prospect of crazy mobs in front of the courts.

    IMO it was just a question of time until the Bush goons would start to tackle the judges. Only sworn to their conscience and the letter of the law, they are just too independent for a US right that's disinterested in the rule of law, and clearly favour the bible - how they choose to read it, or perhaps the sharia :rolleyes:

    They'd rather like see rules in court after their christian values, no matter what the law, pretty much along the lines of how the Teheran government understands the job of a judge :rolleyes:

    Have a good look, you'll see brownshirts in action in this artificial and phony 'debate'. Their ravings and opinions have the character of a fathwah. They are right, the judges are wrong, no matter what. And they'll trample, smear and harass anyone who comes in their way.

    Want a job in the public sector? Ambitions becoming elected judge? Better have the right opinion on 'life issues', right here in the most literal sense.

    The politicos supporting and fueling that movement play blame the messenger, because the laws weren't made by the judges but by them, the lawmakers. But that can't impress the activists: "Judges are evil liberals, rah-rah!"
    :bs: It's, simple enough, a witchhunt :bs: by a crazed mob, agitated by politicos trying to cash in on the endless 'pro-life' debate in the US.

    Disgusting, the whole thing.

    [ April 02, 2005, 10:17: Message edited by: Ragusa ]
     
  5. Beren

    Beren Lovesick and Lonely Wanderer Staff Member ★ SPS Account Holder Resourceful Adored Veteran Pillars of Eternity SP Immortalizer (for helping immortalize Sorcerer's Place in the game!) New Server Contributor [2012] (for helping Sorcerer's Place lease a new, more powerful server!) Torment: Tides of Numenera SP Immortalizer (for helping immortalize Sorcerer's Place in the game!)

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    There might be another dimension to it.

    *God I love to lecture on Canadian law* :D

    Canada sees plenty of cases go up to the Supreme Court on cases such as distribution of benefits to previously excluded groups (e.g. homosexual or common law couples), natural resource management, the fisheries, and a whole host of other issues with sociological, economic, and other dimensions.

    The reason they end up in the Supreme Court is because the policy decisions that Parliament and the ministries come up with tip the balance in favour of one group, or another. So naturally, you see challenges based on the right to equality, or the Aboriginal rights provision.

    The problem is, Supreme Court Justices, however smart they are (e.g. W.I.C. Binnie or previous Chief Justice Brian Dickson) or questionable they are (e.g. I'm not overly impressed with John Major), are trained only for legal analysis. These sorts of issues necessarily engage a host of other disciplines, such as economics. Parliament can set up commmittees and obtain advice from experts in those disciplines. But a Charter challenge throws everything plunk into the lap of the Justices. The question becomes one of institutional competency. And there's a whole never-ending debate about whether that's what we really want. The Justices themselves have expressed discomfort with the whole thing more than once.
     
  6. Darkwolf Gems: 18/31
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    [​IMG] I guess I will risk being labeled a "GOP hack". :rolleyes:

    The problem that many conservatives have with the current judiciary is that they are de facto legislating from the bench. A judge's job is to apply the rule of law, not to alter it (unless it is unconstitutional), and certainly not to create it. There have been a couple of cases lately where the Supreme Court has cited European laws as precedent to overrule the Constitution. This pisses me off! Additionally, the 9th Circuit Court (not surprisingly located in San Francisco) has made several rulings that have overturned laws that have been on the books for decades, were perfectly constitutional for all those decades, and has also quoted foreign law to support these positions.

    The Terry Schiavo case is being used as an example of more legislation from the bench, but that was just manipulation of the issue, and not based in fact IMO.

    The battle for the judiciary has been ongoing for the entire history of our nation. The judiciary has risen and fallen in power, based upon the views of those appointed to the Circuit courts and Supreme Court. It is very important that activist judges not be appointed. The best people for these positions would be those who are not biased very far to the left or right, and who can restrain themselves to applying the rule of law based upon US precedent and the Constitution.
     
  7. chevalier

    chevalier Knight of Everfull Chalice ★ SPS Account Holder Veteran

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    Objection. The Schiavo verdict contradicted the letter of the federal Constitution. The right to life is clearly spelt out and there is no right to have your wife put to death. If you claim that it really was Terri's wish, then there's still no right to die and the right to due process was directly infringed - mere oral testimony of an interested party is sure as hell not enough for anything. I don't want to hijack the thread and spur another off-topic Schiavo discussion outside of the Schiavo thread, but I can't agree with the view that Greer obeyed the law to the letter, let alone that he did what he should have done.
     
  8. Late-Night Thinker Gems: 17/31
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    @ Darkwolf

    Could you please be more specific? I know the justices cited European laws in banning the death penalty for juvenile offenders...but that is hardly overruling the Constitution. As a juvenile offender myself, I must agree with the justices. If you compared adult LNT with sixteen year old LNT you would be shocked that we are the same person.

    So what cases do you mean? Or are you just propagating right-wing...err...progaganda?
     
  9. Ragusa

    Ragusa Eternal Halfling Paladin Veteran

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    The critic pointing this out was either ill-informed, or ill-willed.

    Point is that when talking about death penalty it is prohibited in large parts of the world by international law - with the initiative coming from the countries, not some international entity. To cite the consensus there means not adopting european laws, but to take into consideration arguments and conclusions made and reached here. It's just an aid argument.

    Germany's constitutional court, has also used the American legal principle of 'judicial self restraint', which is totally ok with me.

    Legal principles and truisms don't stop at borders.

    A perfect example on the 'anti judiciary' nonsense can be found here, a book, titled Men in Black, propagated by FOX and it's goons, but seemingly not talked about by anybody of legal occupation or knowledge. One wonders why. According to this caustic critic that's because it's so bonkers that it would be waste of time:
     
  10. Darkwolf Gems: 18/31
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    Chev,

    The right to life is anything but clearly spelled out in the Constitution when you look at it from its application. If it were as clearly spelled out as you say, then there would be no abortion and no pulling the plug on anyone. The fact is that life itself is not defined, so the right to it is subject to interpretation.

    LNT,

    :eek:

    I am sorry to hear that you are a person who has committed a crime worthy of the death penalty if you were an adult, though I am not sure why you would choose to admit such a thing :confused: . It seems you have little remorse for your actions.

    If anyone wishes to see cases where federal courts have used international law you may easily find them, as well as discussions as to the constitutionality of such rulings in a simple Google search.

    Ragusa,

    The difference is that the Supreme Court is only supposed to view cases based upon the Constitutionality of the law or judgment. Lower courts are supposed to find on the merits of the evidence, severity of the crime, and if proper procedure was followed. That is how our legal system is set up, and the Supreme Court is stepping out of bounds in applying any law other than the Constitution of the United States as it was then currently amended.
     
  11. Ragusa

    Ragusa Eternal Halfling Paladin Veteran

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    I'm unconvinced Darkwolf.

    Here's why:
    It is noteworthy that six out of the seven GOP-appointed judges on the 11th circuit court (and every one of the Reagan, Bush I and Bush II appointees) all voted against the Bush-DeLay position.

    DeLay, for one, argued that the federal court decisions were an arrogant usurpation of power because, in his view, these judges disregarded the law passed by Congress.

    If that was indeed the case, then shouldn't Congress have appealed those decisions to the Supreme Court or passed another law?

    But DeLay and the others choose to do nothing—after polls showed their intervention was tremendously unpopular with the American public.

    Now then, it wasn't illegal enough for them to intervene in Congress, but now they bash the judges? Sorry, I don't buy in on that.
     
  12. ejsmith Gems: 25/31
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    The Constitution was made vague, for a specific reason. Such that it could be "interpreted" as to the whims of the court.

    For example, "cruel and unusual punishment" was ruled as executing people below the age of 18. The Supreme Court called it just that, but they based their ruling on "world consensus" and "popular opinion".

    Or the 2nd amendment, with it's "well-regulated militia" requirement. Does that mean that everyone with a gun is part of the militia, or that you have to be part of the milita to have a gun?

    The older Justices are extrememly liberal, with the younger generation much more conservative; and right now, we have a conservative majority in the nation. We have a really vocal load of right-wing granola eaters, but they are just simply a minority.

    Basically, the court is forcing us to amend our Constitution to do anything, in the nation, that would be considered "against world consensus". Which actually suits me just fine. We need something to rattle our entire justice system really, really good. The entire system has become dysfunctional and mired in it's own bureaucracy. Same thing with our Congress. We need some radical amendments to change the entire game.

    America needs a lot of work. I'm glad we took the time to hit back, but we really need to address all our social issues. There's plenty to do around the house.
     
  13. Late-Night Thinker Gems: 17/31
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    @ Darkwolf

    Wow...you are quick to suppose. And then judge as well.

    In fact...FU.

    You should think before you type. Although, after reading my own comment, I suppose I did leave room for a person whom assumes the worst in other men...sorry for not noticing your lack of perception in advance.


    Soooo...anywho...

    I am garnering two distinct impressions...

    #1 Judges interpret the Constitution and some people do not agree with their interpretations. In this case, the problem is not so much with the system as it is with the men whom don the black robes.

    The solution in this case seems easy enough to rectify if only we all agreed on whom should be judges. Given that we do not...this issue is probably going to linger with us for another couple of centuries.

    #2 The system is broken in that allowing judges to interpret the Constitution has caused too much power to be given to lone individuals or small groups of individuals. As such, we should limit their powers in declaring new laws not in accordance with old laws.

    Does anyone see solutions to this issue without granting the legislative branch a large increase in power? Could the legislative branch wield this sort of power responsibly?
     
  14. Blackthorne TA

    Blackthorne TA Master in his Own Mind Staff Member ★ SPS Account Holder Adored Veteran Pillars of Eternity SP Immortalizer (for helping immortalize Sorcerer's Place in the game!) New Server Contributor [2012] (for helping Sorcerer's Place lease a new, more powerful server!) Torment: Tides of Numenera SP Immortalizer (for helping immortalize Sorcerer's Place in the game!)

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    Whoa now. Take accusations and acrimony to PM please.
     
  15. Ragusa

    Ragusa Eternal Halfling Paladin Veteran

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    Read an excellent Op-Ed on this in the Washington Post, titled It's The Law, Not the Judge that makes a very good point.
    One mustn't wonder about morons making death threats against federal judges, considering such a political climate.

    If anyone can be accused here, then it is the president, senate, congress (both parties), the politicians in general for political and legislative cowardice, leaving decisions to the courts, and then complaining about the decisions.

    If they don't like the decisions, they could change the laws so that it would oblige Judges to make decisions as desired - but that would require an actual debate in congress, a consensus, that requires public dispute and, horrors, dialoge and perhaps even concessions.

    When on is so very right as the christian right for instance, concessions amount to treason.

    It's far more convenient to simply pummel on the judges than to stand to the own failures and cowardice. "Mistakes, me?"
     
  16. Darkwolf Gems: 18/31
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    Ragusa,

    As I have stated already, I am in agreement with the court's position on the Terry Schiavo case.

    The Terry Schiavo case is being used as an example of more legislation from the bench, but that was just manipulation of the issue, and not based in fact IMO.

    I was speaking of other cases, such as sodomy findings and death penalty finding where the Supreme court has used foreign law in their rulings. This is unconstitutional in and of itself, and this is beyond the scope of the powers of the Supreme Court.
     
  17. Ragusa

    Ragusa Eternal Halfling Paladin Veteran

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    They didn't 'use' foreign laws. They just included them as a guideline into their consideration. The european laws, and I think they were talking about the European Declaration of Human Rights for instance, never were the legal basis of their decision.

    Instead, they were using it an 'inspiration', so to say. That is a common legal technique when something isn't fully regulated or covered in national law.
    When the lawmakers don't give them the guidelines on which to decide, one can hardly blame the judges.

    For example on German's constitutional court's use of the US principle of judicial self-restraint, something from a totally different and alien sphere of law:
    Our constitutional court didn't say: "Because of the US principle of judicial self restraint this court won't decide on issues better left to legislative" - they didn't *use* that legal principle.
    Instead they referred to the primacy of the legislation on critical issues as embodied in that American principle, cited it as an example, and refused the case based on that.

    That is a major difference.

    The right-wing uproar "but they used a foreign law" is emotionalist ramblings about an issue not fully understood. It's just cheap populism.
     
  18. Darkwolf Gems: 18/31
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    Ragusa,

    I will try to say this one last time as clearly as I can.

    Per the Constitution, the Supreme Court is only to examine existing laws and rulings related to their Constitutionality. It is for lower courts to interpret and apply if there is a hole such as you describe. Supreme Court Justices, by the description of their jobs, can only overturn a law or ruling if it is unconstitutional, no matter how stupid, or unfair said law/ruling is. It is part of the checks and balances built into our Constitution. If they do anything else, they are usurping power.

    That may seem unfair or crazy to you, but it is the way the founders of our government designed it, and to change it requires an amendment to the Constitution.
     
  19. Laches Gems: 19/31
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    @ Darkwolf -

    You're understanding of SCOTUS is incorrect. See the SCOTUS official website for a brief overview of why.
     
  20. NonSequitur Gems: 19/31
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    @ LNT,

    I think it's been spelled out fairly well: everyone loves a judge when they get what they want, and almost everyone hates a judge when they don't. The main difference (at least, from where I stand) is that the bulk of lefties who complain about it are activists or student protesters for whom complaint is a way of life, and the majority of right-wingers who complain tend to form interest groups and lobby sympathetic politicians to get their views acted upon. As Ragusa put it, it's just populism more often than not, and not particularly well disguised, either.

    It's good to see the "biased" judiciary (just like the "biased" media, huh?) isn't lying down on this one, though. The judiciary is meant to act as a check on the power of government and make sure it does its job. Since people seem more concerned with punditry than professionalism, it's easier to connect with the emotional rhetoric of "Liberal judges are destroying the nation!" than a good, solid argument.

    @ Darkwolf,

    I applaud you for your arguments, even though I feel they are perhaps too legalistic and literal. However, your position is very clear, and very different to that of the "GOP hacks", chiefly because there is reason and substance in your argument. I do think, though, that the latest round of judge-bashing in the USA has been sparked off by the Schiavo case, and ironically, in this instance the courts are doing exactly what they have been required to do while Congress has tried to usurp power and overstep its bounds by legislating on the private lives and self-determination of its citizens. I also have the sneaking suspicion that, in this last case, you and I would be in agreement.
     
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