Based on what? From where in the Constitution do they derive such powers? Why do those supposed powers trump the supposed rights that inhere within the Ninth?
So then you could say that leaves us with the question of what to do with the 14th amendment...
Which is, as I recall, right back where we started. Welcome to the beginning ;)
Man, do you see what you're saying here?
LOL - I finally really shocked you, did I? Yes, I know what I'm saying...
You're saying that our whole system of justice is based on an illusion...
Yes.
...and that therefore Justice Moore is morally obligated, by his Oath, to obey the dictates of the 11th Circuit court.
Yes.
Forgive me if I don't find this convincing.
I don't expect you to, not solely on my say-so. Contemplating such a thing is quite shocking to most people, and the most shocking part of all is that it's completely true. And it is true - the judicial magisteria is an illusion, the same way that the dollar is an illusion. It works because we believe in it. The power of the courts is ultimately an illusion, and one that only exists because we persuade ourselves of the reality of a more fundamental illusion - the illusion that the courts are apolitical.
And that illusion comes about because people think that something magic happens when you put on those black robes - somehow you set aside your personal opinions, your past, your prejudices, your politics, and become a hard-eyed, rational, law-dispensing machine. This is what everyone allows themselves to believe, although not quite in such explicit terms - when I put it in those terms, it sounds exactly as irrational as it actually is. Or is it really irrational to believe in that illusion if it fosters some worthy end? Hmmmm...
Anyway, it's ridiculous, of course - judges are human, and judges always evaluate the law and the facts in terms of their own personal beliefs, and will continue doing so until we replace them with real law-dispensing machines. They can't help it - they're human. And yes, even conservative justices are living, breathing humans underneath the robes, before you ask.
Now, this should not be taken to mean that judges are totally cynical about what they do, and are simply manipulating the law to their own preferred ends - occasionally, you see someone like that, but not very often. Rather, what happens is that the preferred ends find a particular vehicle in one legal theory or another, and that legal theory becomes the thing which all cases are filtered through. But the key is what happens when that legal theory interferes with the preferred ends - that's when the political nature of the courts is briefly revealed, because that legal theory gets tossed right to the side in favor of something that will implement the preferred ends. Essentially, as a practical matter, all judges at every level operate according to the theory that principles are fine, so long as they don't interfere with the desired end result. And when they do, they get dropped faster than a hot rock. You sure didn't see much of a discussion of states rights in Bush v. Gore, did you? Kind of funny for a conservative court that has made states rights an issue of great importance, don't you think? And lest you think that I'm intimating that this is a peculiarly conservative affliction, trust me when I assure you that there are plenty of cases from the other side that are produced in exactly the same manner.
It's not really a matter of encouraging them to be political creatures by saying all this, I have to say - they are political creatures. We're simply recognizing that fact - there's a rather ordinary fellow behind the curtain, despite efforts to pass himself off as the Great and Powerful Oz. You can try to discourage politicization of the courts, but you can't change the fact that judges are human beings with their own ideas about how society should be organized and run.
So what keeps them in check? Why aren't they running wild and implementing whatever political theory or idea pops into their little heads? Because they know that their power is an illusion, based only on the belief among the citizenry that they are apolitical - they can't afford to be obvious or blatant about it, or they'll lose all legitimacy.
And the way they avoid being obvious or blatant about it is by keeping a thumb firmly mashed on the pulse of the people - they track the will of the people and the prevailing political mood of the day very closely. They are, in theory, not supposed to, of course, but the notion that the courts pay no heed to public opinion is out-and-out bullshit, if you will excuse the expression momentarily. Good judges always pay attention to the will of the people, because they cannot afford for a moment to find themselves in serious opposition to it - on the rare occasions when they have, the end result has always been ugly for them or for the country. The first instance was 1793, in Chisholm v Georgia - the result was the 11'th Amendment. The second was in Dred Scott - the result was 600,000 dead Americans and the 14'th Amendment. The third was in 1937, with FDR's New Deal legislation, and the result was an injury that effectively broke the back of the court for two generations and change - it is an injury that the Court is only now beginning to recover from in the last decade or so.
And so what ends up happening, far more often than not, is that, rather than having an imperial judiciary imposing their will on an unwilling citizenry, you get a rubber-stamp judiciary, effectively running around behind society and legitimizing the things the people want. They don't lead society - they can't lead society in any significant manner. Instead, they follow society - the courts are simply not an effective barrier to majoritarianism. They can only afford to oppose the majority within very narrow limits - basically, they can only produce rulings that thwart the majority if they know that the majority will tolerate being thwarted, which is why tracking the will of the people is critical. That's how they can implement those preferred ends, but it's slow and incremental, rather than radical and quick. They can only produce rulings that they know will allow the people to continue to believe in the illusion of their apolitical nature. Once they cross the line and become explicitly political, it's all over for them. Andrew Jackson stopped believing in the magic. Look what happened to the court's power then - they had none.
It's all an illusion, though - it's smoke and mirrors. There is no Santa Claus. Unlike the illusion of Santa Claus, though, this has rather more long-term utility to us - it fosters a system of dispute resolution that we can all accept, and we need that as a functioning society. And the realization that judicial power is an illusion is the most effective check upon them that can ever exist, far more so than Congress or the states or whatever. Win the hearts and minds of your fellow citizens, and the courts will always follow. Always.
And if you still don't believe me, I'll simply leave you with some history to chew on for a bit. In the early 1970's, the Supreme Court produced Roe v. Wade and a series of attendant rulings that created a rather expansive right to abortions. Then, beginning in the early 1980's, there were a series of ruling that served to narrow access to abortion, by addressing how, when, where abortions may be performed, not to mention who should pay for them.
In the middle 1950's, the Court produced Brown v. Board, and followed with a series of attendant rulings, all of which mandated the end of state-sponsored segregation in education. The lower courts took that ball and began dealing with the issue of segregation in a host of cities and states around the nation, continuing on until the middle of the 1970's. Then, in the late 1970's and early 1980's, the Supreme Court began producing a series of rulings that served to cut back on efforts to desegregate schools, by narrowing the conditions for action and the range of solutions available.
Why?
What changed? Why did the courts travel in one direction, only to backtrack later on?
The facile answer is, of course, that the courts grew more conservative in the interim. But that overlooks the deeper truth that is at work here - the reason the courts changed is because the country grew more conservative in the interim. By the late 1970's and early 1980's, those earlier rulings were about to begin producing dangerous amounts of grumbling among the citizenry, and that is the one thing that the courts absolutely cannot afford. Those early rulings had to be tweaked in order to bring them back in line with the people, in order to bring them back into that narrow range of action that the people will tolerate from the courts. And so they were.
Hearts and minds. That's where the real battle is, not in the courthouses....
You mean, from where in the Constitution do the states derive such powers? Is that a serious question? I'd expect better from someone of your caliber.
LOL - I finally really shocked you, did I?
Move over, Howard Stern ;-)
And it is true - the judicial magisteria is an illusion, the same way that the dollar is an illusion.
I don't agree with that analogy. The dollar (at least when we have sound currency - don't get me started on that) is more like the law - a fixed standard of reference. A politicized judge is anything but.
And the way they avoid being obvious or blatant about it is by keeping a thumb firmly mashed on the pulse of the people - they track the will of the people and the prevailing political mood of the day very closely.
And you consider this a healthy system? If the only reason we needed a constitution was to protect against blatant usurpations, then we could just as easily do without it completely, since the people will always resist overt attempts on their liberties. The purpose of the Constitution is precisely to protect against the little unnoticeable (or even not-so-little but off-the-radar-screen) usurpations that accumulate over time. That's exactly why the Constitution must be understood as a fixed standard if there's to be any point to it at all.
They don't lead society - they can't lead society in any significant manner.
Wrong, completely wrong. If they followed society, then there'd be little need for them to strike down state laws that liberals don't like (especially ballot questions!), since the people would have already struck them down through the democratic process. It's precisely because liberals can't prevail in democratic persuasion that they turn to courts to enact their agenda.
Tell me, do you think "the people" are really all that offended by Moore's monument? Do you think "the people" wanted to maintain racial preferences at the University of Michigan? Most especially, do you think "the people" would ever have approved of, let alone demanded, using Eurotrash socialistic hogwash as a basis for a SCOTUS ruling?
Why did the courts travel in one direction, only to backtrack later on? The facile answer is, of course, that the courts grew more conservative in the interim. But that overlooks the deeper truth that is at work here - the reason the courts changed is because the country grew more conservative in the interim. By the late 1970's and early 1980's, those earlier rulings were about to begin producing dangerous amounts of grumbling among the citizenry, and that is the one thing that the courts absolutely cannot afford. Those early rulings had to be tweaked in order to bring them back in line with the people, in order to bring them back into that narrow range of action that the people will tolerate from the courts. And so they were.
That's all very touching, but the fact remains that despite their apparent shift to the right, they're still getting more and more brazen with their power. Witness what I referred to above, the citation of foreign law as a basis for rulings. Even Anthony Kennedy is now a convert to that new way of thinking. And in fact, even Clarence Thomas accompanied Kennedy and a couple of other justices abroad for a conference with European judges, although we don't know as of yet what his opinion of this whole mess is. Your characterization earlier in the post is much more accurate: "That's how they can implement those preferred ends, but it's slow and incremental, rather than radical and quick." Exactly right, and exactly the problem.