[GCFL-discuss] Teddy

[Discussion of the Good, Clean Funnies List]

Lance, there are many things that, in my mind, just don't compute about
the "liberal Supreme Court judges" line of argument.

To start with, there is no justice on the court now that I don't
sometimes appreciate, and sometimes deplore. For example, Scalia and
Thomas were stalwarts of the Apprendi opinion, which basically said,
nobody can have their sentence increased by a judge based on facts that
have not been submitted to a jury. Breyer wrote a horrible dissent about
what is reasonable for the efficient administration of justice -- which
Scalia skewered nicely by pointing out that the Framers of our
constitution weren't always interested in efficient administration, and
trusted juries more than judges. John Paul Stevens wrote a terrible
dissent in Boy Scouts of America v. Dale, the one about the homosexual
assistant scout master; he pored over whether and how condemnation of
homosexuality was part of the Boy Scouts' "expressive message," when the
whole point of the majority opinion was, its none of the government's
business, including the courts, the Boy Scouts have a right to freedom of
association, which includes defining what you want your "expressive
message" to be. Period.

Don't forget that Stevens was appointed by a Republican conservative
president. Don't forget that Earl Warren was appointed by President
Eisenhower, at the insistence of Richard Nixon. That's the next point:
presidents are ALWAYS surprised by how their appointees turn out. That is
as it should be -- the court is a co-equal branch of government, not a
subordinate department.

For what its worth, you might also take consolation that the next few
judges likely to die or retire are generally among those considered
"liberals" ... Stevens, Ginsburg ... so Obama won't likely be appointing
anyone to replace Thomas, Alito, Roberts, or Scalia, although maybe
Anthony Kennedy will retire. So nothing is going to tip radically anyway.

But the bottom line to me is, most of the complaints about the court come
from people in legislative or executive branches of government who want
some power that the court denies them. That is part of the court's job.
As Hamilton and Madison wrote in the Federalist Papers (I always rely on
conservative sources for questions like this), if congress or a
legislature passes a law it has no constitutional authority to pass, then
that law is null and void, and it is the role of the judiciary to declare
it so. That's not a power to create law, but it is a power to refuse to
enforce or apply a law that is unconstitutional. Its an important
function to preserve the liberties of individual citizens.

Siarlys

____________________________________________________________
Save $15 on Flowers and Gifts from FTD!
Shop now at http://offers.juno.com/TGL1141/?u=http://www.ftd.com/17007
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://gcfl.net/pipermail/gcfl-discuss/attachments/20081229/7f221735/attachment.htm>