Posted on 03/02/2005 5:05:06 AM PST by Brilliant
Supreme Court Justice Anthony Kennedy has many attributes, but judicial modesty isn't one of them...
Yesterday's ruling concerned a death penalty case, which isn't something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court's burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of Justices has been imposing its own blue state cultural mores on the rest of the country. We suspect it is also inviting a political backlash...
As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."
Mr. Kennedy rests his decision on his assertion that American society has reached a "national consensus"... His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority...
This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind...
If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to Chief Justice...
(Excerpt) Read more at online.wsj.com ...
Term limit justices! Mandatory retirement at age 80! End judicial tyranny now!
This case is most dangerous not because of the murderers it excuses but because of the precedent used to reach the opinion. Precedent that involves reference to international agreements and customs rather than State Laws that reflect the collective will of the people in the jurisdictions where the crimes were committed should be grounds for dismissal from the court for violation of the "Good Behavior" requirement. Mark my words, these "international" precedents will now continue to be used to constrain the rights of the American people until this court is brought to heel.
Congress should select one Judge for removal (I suggest Ginsberg or Souter but take your pick)and let the Liberal Democrats swizzle on that issue while that Judge is pilloried in an Impeachment hearing. Would be a lot more fun than watching them try to ramrod their will over the majority to prevent appointment of a Judicial nomination of an "Original Intent" nominee.
The oath of office for SCOTUS judges should also be modified.
I know that an appointment to the US Supreme Court is for life... meaning the term doesn't end after a specified time.
but can we start impeaching these jerks???
and is there a way to put a standard tagline on my posts, or would I have to type it in every time?
my preference on the terms limits issue is that you get 10 years as a federal judge and then you have to get promoted to the next level or you are out. No more lifetime appointments.
it has reached the point that SCOTUS does more legislating than the house of representatives and the senate combined
This is a great editorial. Unfortunately, you have to had a password to read the whole thing, but I recommend you go to the library if necessary.
That's all the more reason to have checked editorial when posting it. Then it will have hangtime in the editorial sidebar.
Passwords are available at bugmenot.com for those who don't want to register.
The URL above also indicates that it is available for free at OpinionJournal.com for those who register with the Wall Street Journal's OpEd pages.
While I thoroughly agree with Scalia on this, the math of 18 of 38 opposing the youth death penalty IS a consensus.
They forget that the other 12 States don't approve any death penalty at all. The consensus, then is 30 of 50 disapprove of the youth death penalty.
The question, though, is whether there is anything in the Constitution that says the death penalty is cruel and unusual punishment.
Since the Constitution affirms that one may be deprived of life via due process of law, then it follows that the death penalty is not necessarily cruel and unususal.
But, alas, there is hope - help is on the way! I firmly believe that President Bush will help us in this court.
I don't see how you can say that 30 of 50 is a consensus. Of course, the WSJ points out that the Constitution doesn't automatically amend itself everytime there is a consensus on something anyway. The abortion decision is the killer argument on that. As they point out, every state had some law regulating abortion when the Court issued Roe.
Consensus, so far as I know, has no numerical definition, but is thought of as being more than simple majority. One approaches the right to use the word consensus when 60% or more. 30/50 is 60%.
5
I understand the argument, but if the US Constitution changes its meaning automatically every time 60% of the states change their own laws, we're in big trouble. It would certainly seem contrary to the Constitutional provision that requires 2/3 of the states to approve any Amendment. We wouldn't need to follow the 2/3 requirement since every time the SCt found that 60% of the states agree, the Constitution would automatically change without an amendment.
Of course, as you point out the issue is not whether there is a "consensus" anyway, but whether it's "unusual". I don't see how they can say it's "unusual" if 19 of the states allow it.
I am sure that the death penalty opponents are now hoping they can get 31 states to abolish the death penalty, so they can rely on this decision to argue that the death penalty is "unusual" altogether, even for adults.
However, this is not a nation that governs on consensus. It governs by Constitution.
I don't believe there's any way to declare the death penalty unususal, because it is specifically addressed in the Constitution. That is why "unusual" had to be some kind of sophistry trying to make a distinction for "youth."
The SCt has already declared the death penalty "cruel." The only thing that prevents them from throwing it out altogether is their conclusion that it's not "unusual" and that the Constitution requires that it be both in order to be unConstitutional. This decision is just another effort by the liberals on the Court to set up a future decision declaring the entire thing unConstitutional. The decision stands for the proposition that if only 19 states allow the death penalty, then it's "unusual" and hence unConstitutional. It's just a matter of time before they play that card.
Let's face it, the GOP is as likely to suck when picking SCOTUS nominees as it is to get it right. For every Scalia or Thomas there is a Souter or -- depending on the case -- a Kennedy or O'Connor.
The Democrats, however, are perfect in that they always pick horrible judges. They never slip up and accidentally pick a good judge, while Bush the Elder believed Sununu's proclamation that Souter was a slam dunk for conservatives. How could he have been soooooo wrong?
I'd love to see, for example, the Sup Court impose gay marriage or civil unions (and the 'or civil unions' is important since most states would reject legal recognition of same-sex unions no matter what euphemism is used to describe them), and then have a defiant President and Congress publicly slam the decision as being w/o basis in the Constitution, and then proclaim their intention to ignore the decision and refuse to enforce it.
If I thought for a second that Bush or the Senate would do this, then I'd root for such a SCOTUS decision (I'd give the House a 50/50 chance).
It would be great, as it would focus the public on the Courts like nothing else ever has. It would allow the GOP/Right, if they were willing, to make the case that these justices were abusing their power by imposing their won leftwing, elitist values on the entire nation, and that the the same mindset that leads one to impose gay marriage is the same that makes impossible even the most reasonable restrictions on abortion, and that twists the Establishment Clause so as to give themselves the power to ban public nativity scenes or prayers before a highschool football game.
I'm confident that we could win this battle for the public, despite inevitable and vigorous mainstream media campaigning for the concept of judicial rule.
Really, what is the worst that could happen? The Sup Court cannot enforce its decisions w/o the other two branches. If the President assured the states that they could ignore the decision and keep handling the matter for themselves, what could happen?
It seems the only way the decision could ever be enforced would be if some future President decided to enforce it, but by then the notion of judicial supremacy would be shattered.
Impeachment, nullification, interposition, and the use of Article III, Sec. 2 of the Constitution all need to be considered.
We need to hold these officials accountable through impeachment, recall, nullification, interposition and arrest where necessary.
I am so seek of this endless deference to judicial tyranny. The nebulous references to "growing national consensus" and citations of "international law" are just too much to countenance. What does it take to make 5 of these justices cognizant of the fact that their authority to preside originates in the US CONSTITUTION?
When oh when will some elected executive officer in some state or federal capacity, in fulfilling his constitutional duty to honestly interpet the constitution (federal or state) just disregard the unconstitutional rulings of any court and dare the legislature to impeach him for it? When will some legislature impeach just ONE judge for an unconstitutional ruling?
To say that the courts have the final word on the constitutionality of a law NO MATTER WHAT THEY RULE is to say that the system of checks and balances envisioned by the founders does not exist any more.
Alan Keyes gave the best summation of this issue that I've heard yet. He said that every branch of government has a duty to honestly interpret the constitution. If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional. If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful. Congress can and should impeach federal judges for blatently unconstitutional rulings that manufacture law.
Lest anyone consider this formula has a recipe for chaos, then I submit to you there is no chaos worse than an unchecked oligarchic Judiciary. We are not living under the rule of law when judges make law up to suit their whims has they engage in objective based adjudication.
BTTT
Agreed. Part of the problem is that conservatives are so few and far between in the legal profession, particularly the judiciary and the trial bar. What is a conservative to the legal profession is a flaming liberal to the average American. I'm a lawyer, so I know about what I speak.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.