Tarry for the Nonce

March 17, 2006

Judicial Hegemony

Filed under: Uncategorized — lmwalker @ 12:15 pm

Be ready for a shocker:

U.S. Supreme Court Justice Antonin Scalia railed against the era of the “judge-moralist,” saying judges are no better qualified than “Joe Sixpack” to decide moral questions such as abortion and gay marriage . . .

The 70-year-old justice said the public, through elected Legislatures — not the courts — should decide watershed questions such as the legality of abortion . . .

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

What? Leave the decision to the states? Let the representative republic decide? That’s just crazy talk, man!

Jeffersonians simply don’t exist in modern America. Clearly, the man is getting dotty in his old age.



  1. Yes, BUT… the Constitution does exempt certain topics from democracy and/or mob rule, e.g. free speech, religious freedom, certain privacy rights, etc. It’s just that the scope of the privacy rights has been broadly interpreted to emcompass abortion and sexual freedoms, which leads to the hand-wringing about “activist judges.” (I don’t mean to attribute the use of this term to you, Laura, unless you accept the charge.) Jefferson certainly recognized that this is a government of limited powers.

    As an aside, I must say that I amused by all of the talk about “activist judges.” Like when the eminent domain case was decided, suddenly everyone who was against “activist judges” decided that we needed more active judges who would override the states… I really think that nearly all judges are doing their best to interpret the law. Who is complaining about the “activist judges” depends on how far the pendulum happens to swing in any given generation. Remember the activist judges who kept knocking out huge parts of the New Deal as unconstitutional?

    Comment by Troy — March 17, 2006 @ 5:06 pm

  2. I guess the term “activist judge” could be defined as a judge that makes decisions based on what he thinks is right, as opposed to what he thinks is the law. Of course, that in itself is impossible to determine. We have to rely on the justification given in the opinion — does it heavily borrow from the language of the law, or does it rely on the judge’s own creativity in interpreting the law? It’s not perfect, but it’s a clue. Likewise, setting new precedents is a pretty good indicator of an activist judge — if a new “right” is created that no one thought existed the day after the law itself was written, that’s a pretty good clue.

    The flipside is true as well, as when the Supreme Court has the gall to claim that limits on political advertising do not, in fact, violate the First Amendment.

    And let’s not forget Sandra Day O’Connor, who thinks that in interpreting U.S. law, the Supreme Court can look for guidance to international “law.” That’s not just activist, it’s absurd-ist.

    Comment by Toly — March 17, 2006 @ 5:50 pm

  3. And let’s not forget Sandra Day O’Connor, who thinks that in interpreting U.S. law, the Supreme Court can look for guidance to international “law.” That’s not just activist, it’s absurd-ist.

    This is off-topic, but are you referring to the 8th Amendment “cruel and unusual punishment” case, where the Court cited international law as evidence corroborating the view that a particular application of the death penalty was no longer viewed as acceptable? It seems to me that in determining whether or not something has received widespread condemnation, it makes sense to take a look at what everyone else is doing (as long as the test remains focused on American standards, which it did and does). Aside from that, what is absurd about referring to international law, as long as it does not supplant our own law?

    Maybe I am just not familiar with the egregious examples that you may be thinking of.

    Comment by Troy — March 18, 2006 @ 1:41 pm

  4. Given that activist judges with a leftist bent gave us Roe vs. Wade, reading something into the Constitution that was not there, Justice Scalia has a point. Who is to say that activist judges cannot be just as abusive when they come from the other side of the ideological spectrum? While a few judges like Clarence Thomas have an extensive philosophical and ethical formation; many judges would not consider possible moral absolutes and the natural law. Unfortunately, I am not sure that voters, and least of all elected representatives, would possess the necessary formation and personal integrity to deal coherently with the major questions of the day, either.

    Speaking for myself, I like judges who prefer long-standing precedent; who have a vast respect for the inalienable rights of “life, liberty and the pursuit of happiness,” and who are somewhat unoriginal and literal in their thinking. Creativity is great in the artist and poet, I am not so sure about judges.

    The large Catholic presence on the Supreme Court is quite amazing. Even Judge Bork, denied a place on the Court, was baptized by my dear spiritual father, Msgr. William Awalt, at the Catholic Information Center in DC. He is now a Christian and a Catholic. Justice Clarence Thomas who had strayed into the Episcopal Church, got his annulment and was received back into the Catholic Church by Msgr. Peter Vaghi at St. Peter’s in DC, another brother priest that I call friend. While Scalia sometimes attends his son’s Masses in Virginia, he and Thomas often attend the Tridentine Latin Mass at Old St. Mary’s in Chinatown, DC. Pat Buchanon, although a parishioner at Blessed Sacrament, is also a regular there.

    Comment by Father Joe — March 19, 2006 @ 12:48 am

  5. My O’Connor comment was related to the Atkins v. Virginia death-penalty case, inasmuch as her comments about that case revealed her views that U.S. law should look to international opinion for guidance. This speech (PDF) to the Southern Center for International Studies has some particularly outrageous comments, interspersed with banalities about “globalization.” It goes way beyond Atkins. This part was just incandescent in its sheer sniveling idiocy:

    …I suspect that with time, we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues, as we both appreciate more fully the ways in which domestic issues have international dimension, and recognize the rich resources available to us in the decisions of foreign courts.

    Doing so may not only enrich our own country’s decisions; it will create that all important good impression. When U. S. courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced.

    I don’t even know where to begin. Let’s start with the arrogance of assuming that the U.S. acts as a “rule-of-law model for other nations.” Those would be which nations, exactly? Europeans don’t need us to teach them rule of law. Many other nations don’t care to replicate the American judicial system, viewing it as too permissive and rights-bound, and leading to high crime. The balane are either dictatorial, utterly lawless, or too corrupt to care. I must have missed the global clamor to build American-style legal systems. Honestly, even a warmongering neocon like me recoils at this talk of the U.S. as some kind of moral dictator to the world.

    Also, just what does O’Connor consider “the world,” anyway? Yes, I’m sure that Western European powers would agree with the Lawrence v. Texas decision (that gay sex in one’s home cannot be a crime). Not so much further east, where being gay can still land you in jail. That’s to say nothing of the Arab or African countries, where it can lead to your death. Or, going back to Atkins, O’Connor apparently inserted the following into the decision, “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Uh-huh. In Ireland, maybe. Not so much in, say, Iran, where they executed a retarded 16-year-old girl for the crime of not being “chaste” enough by the standards of the Islamic nutcases in charge. Seems that Justice O’Connor is rather selective in what parts of world opinion she quotes from. One might even get suspicious that she is using more “progressive” opinion from other parts of the world to push through a left-wing agenda in the U.S., regardless of the inconveniently contrary opinion of the local population.

    Aside from that, what is absurd about referring to international law, as long as it does not supplant our own law?

    For one thing, because it’s not really law. It’s a combination of treaties, which are not as absolute as laws, and are not negotiated with the benefit of the populace in mind. (Not to mention, are not negotiated by elected representatives of the people.)

    On a simpler note, I’m still a fan of notions like sovereignty and independence, meaning that I am not interested in Swedes, Somalians, or Saudis having input into how my society operates. The operation of American society and U.S. government agencies should be the exclusive province of American citizens and their elected representatives. Foreigners can certainly express their opinions, but any “laws” they write should have no bearing. We had a bit of an armed conflict in the late 1700s to settle that point.

    Comment by Toly — March 19, 2006 @ 11:30 am

  6. As an aside, you mention gay sex and the law. Certainly, this is an issue that has caused a lot of concern.

    I can recall when sodomy was not a “protected right” but a perverse crime. It was that way not too long ago.

    (Indeed, any sexual activity, even with a woman, if outside of marriage, was often judged as criminal and there were set penalties.)

    Even now the Church cooperates too closely with the American Psychiatric Association which upgraded homosexuality from a mental illness to an acceptable sexual orientation.

    One of my favorite television programs was DRAGNET. There is one episode where Jack Webb is railing against the sins of the city. Among them he lists “sodomites”. When the episode was repeated recently on television, the sound failed precisely when he moved his lips to say the word that is no longer politically correct.

    Today, the “love that dare not speak its name” is proclaimed a civil right and in our faces where ever we look, even in Cowboy movies… I know John Wayne is rolling in his grave!

    The Church in Boston had to shut down its adoption services because the government made it illegal to discriminate against gay couples. Catholic Charities in Los Angeles was almost shut down by a law mandating benefits and insurance (analogous to a spouse in marriage) to the bed-partners of homosexual men and lesbians. Renters are being compelled to permit gay men and women to live and commit mortal sin in their premises.

    My faith in our society and the legal system is very shaken. I cannot say that I would generally trust judges to make decisions that would please me or others with traditional values.

    I concur with the Church that homosexuality is a disorientation and that to live it out is a grevious offense to God and a corruption of others.

    Our compassion and love for them should not translate as utter toleration and/or approbation. We should encourage celibacy and where possible proven treatments that have helped thousands to adjust to a heterosexual orientation.

    While their penalties are probably too severe, the Arab and African countries that still ban such activity probably have it right.

    Comment by Father Joe — March 20, 2006 @ 10:15 am

  7. Toly, I generally agree with your comments about the problems associated with a court looking outside of the applicable US/state law. I would simply like to offer my opinion that this has not been a problem, is presently not a problem, and judges are unlikely to actually rely on foreign/international law in ways that you object to. In particular, my impression is that Atkins would have turned out the same way regardless of the state of the law outside the United States.

    Father Joe, while I generally oppose anti-abortion laws, I do agree that Roe v. Wade is not firmly rooted in the text of the Constitution and is about as close to an “activist judge” case as you can get.

    As to Lawrence v. Texas, I think that the result in that case required far less, if any, judicial activism because the law at issue implicated a pure individual liberty interest, and did not involve any balancing of competing rights like Roe. Morevoer, I’d be interested in seeing the First Amendment applied in similar cases, where there is apparently no purpose to the law other than to force a majority’s religious beliefs onto others.

    Comment by Troy — March 20, 2006 @ 3:24 pm

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