Impeachment Of Supreme Court Justice(s)?

[Road Warrior ‘04]

Not sure if this question should be posted as vanity, but here it is:

Constitutional scholars and lawyers: If Supreme Court Justices cite International Law to come to a decision, as they did in the death penalty for minors case, can the justice(s) citing international law and custom and not our Constitution be impeached and removed from the high court for delving outside of our Constituion?

[jwalsh07]

Kennedy jumped the shark in Lawrence, there's no way back.

[P_A_I]

Justice Kennedy, in his own chilling, callous terms:

" -- The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design."

His words above are true enough, [if you disregard "expansive"] . -- And if we then ignore his idiotic opinions that follow:

[ " -- To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. ... The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. --" ]

"We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles."


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Now if Kennedy were capable of using unbiased judgment, he could see that our Constitution does not consider death a disproportionate punishment.

Obviously; -- it should be up to a jury to decide if age or mental abilities preclude a death penalty in the particular case at hand.

We should bar lawyers from serving on the USSC. -- Letting them argue before it is damage enough to our Republic.

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Fido969 wrote: No, you can't impeach for incompetence.

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Kennedy's 'incompetence' is getting very close to total disregard for Constitutiuonal principle.
-- But practically speaking, in todays political climate, there is no way he would ever be impeached.

[The Other Harry]

Again, you can drive a cart thru that oath -- if that is what you want to do. Kennedy did. I do not see that as malfeasance. I do not agree with the decision, but he was within his authority. And he had 4 other votes.

[Dog Gone]

Well, we're stuck with him for the forseeable future. If Bush can replace Ginsberg and Stevens, we're in pretty good shape.

[jwalsh07]

Do you think that foreign law should be authoritarian in SCOTUS holdings?

If not, why cite them?

[Iron Eagle]

There is no basis for removal under the present circumstances. While it is true that the Court attempted to buttress its conclusion with weak references to international law and standards, the basis for the opinion was its interpretation, strained as it was, of the 8th Amendment. This was a poorly written, poorly reasoned opinion.

Frankly, any time the Court is "creating" law, the opinions tend to be long, laborious, and often quite contorted. The reason for that is simple, the opinion is weak on Constitutional analysis.

This opinion was weak, and sad, but it is not the basis for removal. It is, however, the basis for igniting the political will to replace these jokers with scholars who can actually read the Constitution.

[Racehorse]

I guess since you are neither a scholar nor a lawyer, you couldn't be expected to know that US law is based on English Common Law; England being a foreign country.

Not really the same thing, is it?  English common law is within our legal tradition, whereas German or French or Japanese or Islamic law is not.

Indeed, our basic approach to interpreting law derives from Blackstone's rules, I believe. 

[truth_seeker]

"Not really the same thing, is it? English common law is within our legal tradition, whereas German or French or Japanese or Islamic law is not."

I watched a forum on Cspan with Scalia and Breyer, on this very topic. (using International Law for US cases)

I am merely saying that our saystem looks OUTSIDE the Constitution, for guidance in Interpreting vague situations. I cited English Common Law as an example of how our system relies on Precedents.

Look, I'm not a lawyer. I merely accept this isn't a totally clear-cut situation. Listening to Scalia and Breyer, it was clear it might come up from time to time.

I guess the other side of the coin is: If given a speeding ticket on the Interstate, tell the judge there are no speed limits, on parts of the German Autobahn!!

Then take it to the Supreme Court.

[The Other Harry]

Do you think that foreign law should be authoritarian in SCOTUS holdings?

Definitely not. I hate the U.N.

If not, why cite them?

The question on the table is what constitutes "cruel and unusal punishment". That would be now, not in the late 18th century.

In that way, you have to make reference to what is going on in general. I also think you have to make reference to what the residents of the various states think is appropriate. And the juries on the individual cases.

I don't think Kennedy was off-base to make reference to the outside. Where I do think he was off-base was not to take into account what the states themselves want to do. To me, that comes first.

I'm sure (pretty sure) that even you agree that there is some age under which even the worst perpetrators should not be executed. Maybe not, but most of us would think so.

I'm around 15 on that number. You could talk me into 16, but you couldn't talk me into Malvo.

In Virginia, we don't mess around. People who get sentenced to death do get executed. It may take five years, but they are toast.

I do not like the Supreme Court (or Congress) taking on what I believe are rights which appropriately belong to the states.

Nonetheless, the Court was trying to decide what is "cruel and unusual punishment". I do not think it was wrong for them to look around in determining that.

S***. We invaded Iraq because we didn't like what was going on there, and most of us FReepers support that. If that was defensible, it was defensible for the Court to look around at what other countries are doing with respect to capital punishment of people under age 18.

Again, that said, I would still like to see Malvo get a little Huusainian justice.

[Racehorse]

I am merely saying that our saystem looks OUTSIDE the Constitution, for guidance in Interpreting vague situations. I cited English Common Law as an example of how our system relies on Precedents.

Look, I'm not a lawyer. I merely accept this isn't a totally clear-cut situation

If it be of any consolation, you are not alone.  Contrary to popular opinion and the prevailing conventional wisdom, the framers were not as explicitly unambiguous as some people (of goodwill)  would have us believe.  :-)

[solo gringo]

These Jerks are making laws again.They should be impeached.

[DMZFrank]

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.

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.

[P_A_I]

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.
-DMZ-

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Well said.

The Montana legislature may lead the way:



Anti-federal bills move forward in House (Montana)
Address:http://www.freerepublic.com/focus/f-news/1344245/posts

[totherightofu]

"Cruel and unusual" is too vague IMO. Just another example in which the verbiage used by the Founding Fathers wasn't specific enough (what constitutes a "speedy" trial for example? going to trial in 2 months or 2 years?), leaving a hole as big as a Mac truck for liberal judges to drive through. Had they studied Hobbs (the nature of man), perhaps they wouldn't have been so idealistic and would have foreseen some of this and tightened up the language.

[totherightofu]

"Listening to Scalia and Breyer, it was clear it might come up from time to time."

How odd that it was Scalia defending/explaining the practice, who in this case in his dissent blasted the other Justices for doing just that: relying on international/foreign law and "customs."

[<1/1,000,000th%]

I think I was here.

[verity]

Although you did not provide the syrup for the pancake, the bunny was tasty. ;-)

Upon review of my statement, I should have stipulated that Congress will be unwilling to set a precedent for impeaching a sitting Justice for those perceived wrongdoings mentioned in the posted article. I trust that clarifies my intent.

[nosofar]

Unless you're advocating assassination, I don't know what you're suggesting.

If foreign laws and practices are to be used even partially in any domestic area to override the Constitution, we should also be able to use this same principle in the area of the appointment and removal of Supreme Court justices (or any other government official). If there is some practice that bypasses the impeachment process described in the Constitution, we could use it instead. You mention assassination. Technically, if was the way many other countries removed their own judges, I suppose this should be legal in this country from the reasoning the Supreme Court seems to be using. :)

[nosofar]

So who gets to decide what is REASONABLE?

I think 'reasonable' is a deliberately vague legal concept that essentially reflects (or should reflect, anyway) the overriding values in society, which can change over time. However, in reality, what we are talking about is what is reasonable for a judge and since the vast majority of judges are lawyers, 'reasonableness' is defined by law a school professors.

[nosofar]

However, it seems like it is reasonable to look at global customs to decide what should be considered cruel or unusual punishment.

The idea of 'cruel and unusual' depends on the values of a given society and culture. What matters is what is considered 'cruel and unusual' in this society, not in Batswana, Nepal, Belgium, etc. Nor would I expect other coutries to create their legal definitions base on what our laws happen to be at the time.