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https://www.vox.com/2018/10/12/17950896 ... nstitution

As my colleague Matthew Yglesias noted last week, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance — often on behalf of corporate interests. And the recent disaster that was the Brett Kavanaugh confirmation has further delegitimized the Court in the public’s mind.

I think they forgot to capitalize the "D" in "democratic" there.

Vox should really be renamed to myopinion.com.

Pwns wrote:https://www.vox.com/2018/10/12/17950896 ... nstitution

As my colleague Matthew Yglesias noted last week, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance — often on behalf of corporate interests. And the recent disaster that was the Brett Kavanaugh confirmation has further delegitimized the Court in the public’s mind.

I think they forgot to capitalize the "D" in "democratic" there.

Congress can pretty much eliminate the SC's workload.

What exactly does "delegitimitize the court" mean? It is what it is - the last and highest avenue of appeal in the legal system. Each justice gets 1 vote. Public opinion doesn't matter.

Again, people have an ignorance of history, apparently even Ivy League professors. The Court has always been political and there has always been griping about the Court. Where we are today is no different than where we've been at any point in the Court's history. Other than the fact that we have Twitter and message boards and Facebook and any number of other instant sources of stuff where people can express their uneducated views of American history to the point where they believe it to be true.

I consider myself part of the public...no delegitimization in my mind...

Col Hogan wrote:I consider myself part of the public...no delegitimization in my mind...

Is Texas responsible for your delegitimizationalized mind?

I think the author kind of left out some important things when he wrote this:

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

What Hamilton actually wrote is this:

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

What he's clearly saying there is that the Judiciary would not have much impact on the actual direction of the society. The problem we've allowed to develop is allowing the Judiciary too much power to influence that. It's not supposed to have any force or will. It's not supposed to have any influence on the direction of the society. That is clearly not the case now. The Judiciary, for instance, recently forced all of the States to recognize homosexual relationships as marriages. It was not supposed to be able to do that.

If we want to fix the situation, we need to take steps to return the Judiciary to its proper place in terms of power to influence the direction of the society. Then we wouldn't have all this crap with big battles over the balance of unelected, life term officials on the Supreme Court.

I don't think the Constitution established EQUAL branches in terms of power. I think it established a government in which Congress is the most powerful Branch and the Judiciary is the least. By far.

Anyway Hamilton didn't write the the Judiciary was the lowest threat to liberty because it was to be above the political fray. He wrote that it would be the lowest threat because it had no power to influence the direction of the society. As soon as we allowed the Court to start influencing the direction of society we lost the basis for saying it's not dangerous.

Good article by Christopher Scalia on the role of the judiciary.

https://www.foxnews.com/opinion/christo ... nfirmation

I especially like this quote of late Justice Scalia.

“no court can expect to remain immune from severe political pressure ... if it assumes the role of inventing solutions for social problems instead of merely applying those solutions prescribed in democratically adopted statutory or constitutional text.”

Winterborn wrote:Good article by Christopher Scalia on the role of the judiciary.

https://www.foxnews.com/opinion/christo ... nfirmation

I especially like this quote of late Justice Scalia.

“no court can expect to remain immune from severe political pressure ... if it assumes the role of inventing solutions for social problems instead of merely applying those solutions prescribed in democratically adopted statutory or constitutional text.”

I’m sorry, but that’s a really dumb quote...especially considering who it comes from.

I think it would be foolish to say judges don't let their politics influence some decisions.

But not all decisions are 5-4. There are more 9-0 decisions than people realize, and probably at least some of those decisions are ones we should be thankful for SCOTUS. When you can get everyone from Samuel Alito to Ruth Bader Ginsburg to agree to something they are probably on the correct side of a question.

The interviewed professor, Mark Tushnet, is a member of the far-left Critical Legal Studies movement. That group basically holds that laws are intended to uphold social power structures. They first emerged when I was in law school in the late 70s. Tushnet wasn’t at Harvard when I was there, but another “Crit”, Duncan Kennedy, was my third-year paper advisor. I recall meeting him one time, and he wasn’t interested in my labor law topic because it was too conventional for him.

kalm wrote:

Winterborn wrote:Good article by Christopher Scalia on the role of the judiciary.

https://www.foxnews.com/opinion/christo ... nfirmation

I especially like this quote of late Justice Scalia.

I’m sorry, but that’s a really dumb quote...especially considering who it comes from.

Never apologize Klam, it is a sign of weakness. I will be the first to admit that my grasp on modern politics and players is thin. My reading and focus has been on pre-1945 topics and only recently have I ventured into the modern era. So feel free to explain why you think so, can't promise I will agree but I will listen.

JohnStOnge wrote:I think the author kind of left out some important things when he wrote this:

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

What Hamilton actually wrote is this:

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

What he's clearly saying there is that the Judiciary would not have much impact on the actual direction of the society. The problem we've allowed to develop is allowing the Judiciary too much power to influence that. It's not supposed to have any force or will. It's not supposed to have any influence on the direction of the society. That is clearly not the case now. The Judiciary, for instance, recently forced all of the States to recognize homosexual relationships as marriages. It was not supposed to be able to do that.

If we want to fix the situation, we need to take steps to return the Judiciary to its proper place in terms of power to influence the direction of the society. Then we wouldn't have all this crap with big battles over the balance of unelected, life term officials on the Supreme Court.

I don't think the Constitution established EQUAL branches in terms of power. I think it established a government in which Congress is the most powerful Branch and the Judiciary is the least. By far.

Anyway Hamilton didn't write the the Judiciary was the lowest threat to liberty because it was to be above the political fray. He wrote that it would be the lowest threat because it had no power to influence the direction of the society. As soon as we allowed the Court to start influencing the direction of society we lost the basis for saying it's not dangerous.

The SCOTUS isn't the problem - it is a symptom.

Congress has continually failed to carry out its legislative responsibilities - leaving the court as the only final arbiter of right and wrong

Scalia, in just about every originalist decision he ever wrote, rebuked Congress for failing to do its job -

I agree with people on the left who declare that the Constitution is a living document - we used it to end slavery, guarantee voting rights, protect against state infringements, establish the income tax, give women the vote, outlaw booze, allow booze, etc

Want to guarantee abortion? Want to guarantee the right to be able to use whatever bathroom you choose? Want to ban guns? Then look to Congress. Want to make those rights inalienable? Congress.

SCOTUS is only perceived to legislate because Congress will not act


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JohnStOnge wrote:I think the author kind of left out some important things when he wrote this:

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

What Hamilton actually wrote is this:

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

What he's clearly saying there is that the Judiciary would not have much impact on the actual direction of the society. The problem we've allowed to develop is allowing the Judiciary too much power to influence that. It's not supposed to have any force or will. It's not supposed to have any influence on the direction of the society. That is clearly not the case now. The Judiciary, for instance, recently forced all of the States to recognize homosexual relationships as marriages. It was not supposed to be able to do that.

If we want to fix the situation, we need to take steps to return the Judiciary to its proper place in terms of power to influence the direction of the society. Then we wouldn't have all this crap with big battles over the balance of unelected, life term officials on the Supreme Court.

I don't think the Constitution established EQUAL branches in terms of power. I think it established a government in which Congress is the most powerful Branch and the Judiciary is the least. By far.

Anyway Hamilton didn't write the the Judiciary was the lowest threat to liberty because it was to be above the political fray. He wrote that it would be the lowest threat because it had no power to influence the direction of the society. As soon as we allowed the Court to start influencing the direction of society we lost the basis for saying it's not dangerous.

The SCOTUS isn't the problem - it is a symptom.

Congress has continually failed to carry out its legislative responsibilities - leaving the court as the only final arbiter of right and wrong

Scalia, in just about every originalist decision he ever wrote, rebuked Congress for failing to do its job -

I agree with people on the left who declare that the Constitution is a living document - we used it to end slavery, guarantee voting rights, protect against state infringements, establish the income tax, give women the vote, outlaw booze, allow booze, etc

Want to guarantee abortion? Want to guarantee the right to be able to use whatever bathroom you choose? Want to ban guns? Then look to Congress. Want to make those rights inalienable? Congress.

SCOTUS is only perceived to legislate because Congress will not act


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