Where exactly is this "leftist bias" conservatives complain about in the judiciary?

[Goofball]

I have heard conservatives complain about the left-leaning, activist judges in the U.S. so often, that I had just assumed that the majority of Supreme Court Justices were appointed by Democrats. But I just went to the Supreme Court website, and found the following info:

W.H. Rehnquist - Appointed by Nixon
J.P. Stevens - Appointed by Ford
S.D. O'Connor - Appointed by Reagan
A. Scalia - Appointed by Reagan
A. Kennedy - Appointed by Reagan
D.H. Souter - Appointed by Bush
C. Thomas - Appointed by Bush
R. Ginsburg - Appointed by Clinton
S. Breyer - Appointed by Clinton

Out of a total of 9 Supreme Court Justices, 7 are Republican appointees. So, where are all of these raving leftist judges you righties are whining about?

[Crazed Rabbit]

Just because they were appointed by a republican doesn't mean they will always have a conservative view. Just look at the recent minor death penalty case where they voted, 5-4 that the death penalty for minors is unconstitutional. A little over a decade ago, the court had ruled on that same issue and decided that executing minors was not unconstitutional. In the recent decision, A. Kennedy apperently changed his mind-or, according to him, the meaning of the constitution changed in the 10 years in between! Of course, they didn't cite the constitution so much as foreign laws! (because, of course, the constitution doesn't ban minor death penalties.)

The problem we conservatives have is with activist judges: those who rule based not on what the constitution says, but what they think is right. Those who, for example, decide that a woman has a 'right' to abortion, due to the 'right' of privacy, which is not in the constitution. Or that there's a 'seperation of church and state' in the constitution. Or that flag burning is protected under 'free expression'. Heck, they'd probably overturn laws against supporting the enemy during wars if the issue ever came up. Or that, since criminals have the right to an attorney, the state must provide one. Or judges who say, "You do what you think is right, and wait for the law to catch up."

In essence, we hate 5 people deciding what is right for our country and totally ignoring what they are supposed to be guided by-the constitution.

Crazed Rabbit

[Proletariat]

Wonderfully put. You can't politicize the Judiciary. It needs to be a strict interpretation of the Constitution.

If you let the Constitution be reinterpreted by every idiotic movement that comes down the pipe, you lose a major part of what is truly unique in US democracy.

[PanzerJaeger]

The supreme court is not the only judiciary in the country Goofball.

[Adrian II]

A little over a decade ago, the court had ruled on that same issue and decided that executing minors was not unconstitutional. In the recent decision, A. Kennedy apperently changed his mind-or, according to him, the meaning of the constitution changed in the 10 years in between! Of course, they didn't cite the constitution so much as foreign laws! (because, of course, the constitution doesn't ban minor death penalties.)

I may be a foreigner, but I can read Supreme Court decisions and Roper v. Simmons is clearly based on Constitutional grounds, citing a change of heart in the majority of State Supreme Courts over the past ten years regarding execution of minors and mentally retarded persons:

(a) The Eighth Amendment’s prohibition against “cruel and unusual punishments” 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. To implement this framework this Court has 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.”
[...]
Three Terms ago in Atkins, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them.
Etcetera...

Oh, and go Anthony Kennedy!

[JimBob]

due to the 'right' of privacy, which is not in the constitution

The words 'right to privacy' are not in the constitution because in the late 1700's the word 'privacy' was a euphimism for going to the latrine. I don't think our founders saw an explicit right to take a dump as needed.

Also have you heard of this thing called the 9th amendment? It states that

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

meaning that rights not listed we still have because one argument against the Constitution was a lack of a Bill of Rights, and one of the problems with the Bill of Rights was the fear that we have too many right to list, so listing rights would make people believe that those not listed we did not have, therefore the 9th amendment.

And laws limiting free speech can be passed only if they protect national intrest (no spilling government secrets say), burning a flag does not harm those intrests, there are no laws that force you to love America.

May I ask why you use quotes around free expression like it was some loney idea?

[Tribesman]

So, where are all of these raving leftist judges you righties are whining about?
You miss the point Goof , if they are not rabid baying for blood and frothing at the mouth right wing exreemists then they must be leftist liberal girly men .

[Crazed Rabbit]

May I ask why you use quotes around free expression like it was some loney idea?

Because it is used to defend people who burn the symbol of our country. Now, that seems awfully close to treason to me...

To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society”

This is exactly what I'm talking about. They decide to do whatever the heck they want, and pretend that it's all hunky-dory since 'the constitution is an evolving document' and other such drivel they make up. The courts are supposed to decide based on the laws, not make laws. And just where in the constitution might one find anything about the constitution's meaning changig over time? It's a bunch of BS the activist judges made up to give the illusion of lawfullness to their dictatorship.

Three Terms ago in Atkins, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them.
Etcetera...

As crazy as it seems, the point of judges in this coutry is to apply the law, in the case of the S.C., to apply the constitution. It is NOT to say that the constitution chages over time, and then decide whatever they think is best.

If state legislatures had been banning executions of minors, that is no reason for the S.C. to start legislating. It is the job of the legislatures to-surprise!-legislate, not for the SC to dictate whatever it thinks. And a 'ational consensus' is totally unimportant, what is important is the constitution, not what the SC declares the people feel.

meaning that rights not listed we still have because one argument against the Constitution was a lack of a Bill of Rights, and one of the problems with the Bill of Rights was the fear that we have too many right to list, so listing rights would make people believe that those not listed we did not have, therefore the 9th amendment.

Yes, but what 'right' is there in the constitution for having an abortion? The SC just decided that woman should be able to have abortions on demand, and so made up some BS about a 'right' to a abortion. How is a ban on abortions unconstitutional?

Oh, and go Anthony Kennedy!

Yes, we had better not execute criminals if they are under a certain age, no matter how heinious their crime is. But if an innocent child is drastically ill...

Crazed Rabbit

[Adrian II]

They decide to do whatever the heck they want, and pretend that it's all hunky-dory since 'the constitution is an evolving document' and other such drivel they make up.

Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.

[PanzerJaeger]

Crazed Rabbit stated things quite clearly.

The Supreme Court's job is not to make law but to uphold it.

[Redleg]

Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.

What I think has happened to the American Judicial System is that instead of just stating that the law is un-constitutional and returning it to the Legislative Branch to be re-written - which the Supreme Court has done in the past and will likely do again - there is a perception that some laws are not being done in this process and the Supreme Court - and more so the appeallant courts - are making law through judicial means - verus allowing the legislative branch to make law.

Now is this perception accurate - at one time I would of thought so - however now I am not so sure. I do believe the courts on occassion have violated the United States Constitution by making law - verus deciding on Constitutionality of the law - but I am coming to believe its not as ballant nor as wide spread as I initially thought.

[Xiahou]

Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.

Taliban... nice touch.

If the Consitution is intended to be a "living" document that's open to subjective reinterpretation, why do we even need a mechanism to change it? It's unneeded if it can be interpretted on "evolving standards".

Yes, I'm aware of the 9th Amendment- it makes perfect sense. The authors knew they couldnt cover everything in the Bill of Rights and they didn't want later governments to try to say the people have no freedoms that arent listed in the Constitution. As has been said, the Bill of Rights does NOT grant rights to citizens- it limits the government's imposition on the citizens. This is a far cry from the Supreme Court creating consitutional rights that don't exist in the Constitution.

Why should the determination of evolving moral standards be left to the discretion of a small oligarchy? We have a representative legislature that is far better equipped to represent the views of the people and has the Consitutional authority to enact laws and make changes to the founding document.

If judges actual did their jobs and interpretted laws- without injecting their own views, their political viewpoints would be a non-issue and the only thing for the Senate to decide would be whether or not the nominee was qualified. I believe this is the way it used to be- and it is the way I'd like to see it now.

[Kanamori]

Oh, dear

[Papewaio]

The Consitution is subjective.

If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.

[Kanamori]

"The Consitution is subjective.

If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree."

That's the problem; some do not like judges "declaring" how the constitution is changing, in some cases. They do not trust them, and can you really blame them? But, then again, that's why they don't have much power to enforce anything.

The irony I see is when people cite the constitution was meant to be, almost always throwing in something about the founding fathers, and then pointing to how the Courts aren't directly in check by the people, losing sight of the fact that is what the founding fathers intended.

[Xiahou]

The Consitution is subjective.

If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.

Sorry, I don't buy that argument. That's like saying that if a criminal code is written clearly there is no need for trials for the accused. Clearly there is a need for courts- but their decisions should still be based on the letter of the law and letter of the Constitution not their personal morals or what they percieve to be a right.

[Papewaio]

Sorry, I don't buy that argument. That's like saying that if a criminal code is written clearly there is no need for trials for the accused. Clearly there is a need for courts- but their decisions should still be based on the letter of the law and letter of the Constitution not their personal morals or what they percieve to be a right.

The letter of the law is a set of rules.

The spirit of the law is justice.

Being flexible is never a bad thing... mmmmmmm gymnasts...

[Gawain of Orkeny]

If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.

Im afraid they werent given this power but took it upon themselves. Once more they should at least have a two thirds majority just like the congress to change anything. If its 5 to 4 then the original ruling of the prior court should stand and the case thrown out of the supreme court. Sort of like a hung jury. You should need 6 voted to overturn something. This would put an end to judicial tyranny. You would never get 6 of them to agree on anything

[bmolsson]

Isn't the American constitution a bit outdated these days ??

[Adrian II]

If the Consitution is intended to be a "living" document that's open to subjective reinterpretation, why do we even need a mechanism to change it? It's unneeded if it can be interpretted on "evolving standards".

It would be a living document even if it were not intended as such. That doesn't mean every interpretation goes. It's the spirit of the text that counts, and as Roper v. Simmons and many other cases show, that spirit must be deduced from historical circumstance and its application must conform to evolving case law, legislative decisions, treaties, medical ethics, international developments and other evidence of changing views and circumstances in society. Hence the Court's view that the notion of cruelty has undergone changes.

And if you don't like so-called 'judicial creep', you should ask yourself why the Constitution established a truly independent judiciary. It's all in the Federalist Papers. If you don't agree with those reasons, you shouldn't complain about justices who accurately observe the Constitution, but campaign for Constitutional change.

[Xiahou]

And if you don't like so-called 'judicial creep', you should ask yourself why the Constitution established a truly independent judiciary.

My guess would be so that it could attempt to stay above the political fray and do its job without being influenced by which ever way the political wind is blowing.

It's all in the Federalist Papers. If you don't agree with those reasons, you shouldn't complain about justices who accurately observe the Constitution, but campaign for Constitutional change.

A judge the follows the letter of the Consitution while saying he would like to see certain parts changed? If that's what you meant- then I don't have a problem with it in principle. In fact, a judge who ruled on the law even if it was going against his personal beliefs would be an ideal judge in my mind.

[Adrian II]

My guess would be so that it could attempt to stay above the political fray and do its job without being influenced by which ever way the political wind is blowing.

I can only agree, even though it's not my country or my Constitution we're talking about. But it's more than a guess in my case.

In a sense I've been here, done this before. I opened a thread some time ago about the Second Amendment. I don't agree with the notion that people should have the right to own guns for self-defense, but in that thread we discussed historical circumstance, I read up on the issues involved. And I concluded that the amendment was introduced (by Madison) and adopted in order to ensure that every American could own a gun as a means to protect popular sovereignty against whatever might threaten it, be it foreign invasion, internal uprising or a power-grab by its own government. So to those who want to ban individual ownership of guns I would say: don't overstretch the original intention and context of the Second Amendment, but go and change or scrap it through the procedure foreseen by the Constitution: legislative action.

The same principle applies to this ruling about execution of minors. I think the Supreme Court has made a decision in line with the spirit of the founders. The underlying notion of the Eight Amendment was that civilisation progresses, or should progress, and that the U.S. should be in the forefront of that movement if that is possible, feasible, and in accordance with the established will of the people laid down in legislative decisions, case law, treaties, etcetera.

Anyway, this is what a 'living' Constitution tends to do: stay alive. Deal with new problems and situations that the authors couldn't foresee, reinterpret itself precisely in order to remain true to its original intentions. Heck, the Supreme Court's power of 'judicial review' isn't even mentioned in the Constitution. But it was standing practice in State courts, so its extrapolation onto the Supreme Court was considered self-evident around 1800. It wasn't until 1803 that Chief Justice John Marshall confirmed his Court's right to overturn unconstitutional legislation: 'It is emphatically the province of the judicial department to say what the law is.' That's what living Constitutions tend to do as well: they grow on a people.

And it isn't as if the Supreme Court has the power to enforce its own private legislation. 'The supposed danger of judiciary encroachments on the legislative authority (..) is in reality a phantom' (Hamilton, FP 81). Oh, and Madison knew his American politics better than anyone else in his time. That's why he insisted that the Supreme Court's jurisdiction would be lifted outside the sphere of public bargaining, partisan infighting and whatever political wind is blowing on a given day. He knew, or foresaw, that such cut-throat infighting would be endemic, inevitable, as well as necessary if the dynamic, forever renascent, forever renewing nation of his dreams to remain alive.

Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.

P.S. Yeah, I'm a Madison fan...

[Steppe Merc]

Question... If the Constitution has to be interpreted litteraly, as it was written, isn't the outlawingi of slavery illegal? Since it says clearly in the Constitution slavery is ok...

[Gawain of Orkeny]

Question... If the Constitution has to be interpreted litteraly, as it was written, isn't the outlawingi of slavery illegal? Since it says clearly in the Constitution slavery is ok...

Excuse me. The constitution was amended so as to make slavery illegal. Thats the way your supposed to change it. Not read something into it by a bunch of ex lawyers that isnt there. Ill remind you that the supreme court upheld slavery. Their just as failable as anyone else and as I said they dont come close to a real majority on any of these issues in the first place. Also theres the fact that this power isnt granted them by the constitution .

[Xiahou]

And it isn't as if the Supreme Court has the power to enforce its own private legislation.

This may be true in reality, but in practice anyone who proposed ignoring a Supreme Court decision would be burned at the stake politically, and probably even thrown in prison literally for it. Courts are now the final arbiters of most everything- they even have the baffling power to overturn a state's own Constitution.

[Proletariat]

Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.

Who're these Americans? Sure, I don't see teenagers with 'T. Jeff Rewlz!' shirts at the mall around here, but the only people who aren't reverential of them are the Micheal Moore idiots who take them for nothing more than a bunch of racist landowners.

Washington's Crossing was a bestseller here for ages.

[Adrian II]

Courts are now the final arbiters of most everything- they even have the baffling power to overturn a state's own Constitution.

So how come? Those nine Justices don't possess supernatural forces that I am aware of. What sort of power makes them the final arbiters of most everything?

[Adrian II]

Who're these Americans?

Those who think the Constitution is set in stone. It printed on paper, you know...

Seriously, my above posts on the subject should be clear enough. I'm willing to discuss James Madison any time, not Michael Moore, Rush Limbaugh and their respective T-shirts.

[Proletariat]

Those who think the Constitution is set in stone. It printed on paper, you know...

Ah, misread you. Thought you were saying the FF are just taken for granted here. (Not completely untrue)

Seriously, my above posts on the subject should be clear enough. I'm willing to discuss James Madison any time, not Michael Moore, Rush Limbaugh and their respective T-shirts.

Well, I'm more of a TJ gal myself, but I'll jump in next time Madison's discussed.

[Kanamori]

"Ill remind you that the supreme court upheld slavery."

That was back in the day when people never made any decision at all based on morals, in the courts. It wasn't, until the Civil War ended, to own slaves was made illegal, and it was a right that many thought should be protected. Dred Scott is the result of a court taking in the very literal meaning of the constitution, so you cannot use that in any respect for showing how an oligarchy of judges are at fault for the slavery rulings.

"This may be true in reality, but in practice anyone who proposed ignoring a Supreme Court decision would be burned at the stake politically, and probably even thrown in prison literally for it."

If there were ever to be a decision that was clearly unreasonable, the justices would be removed so quickly taht you would question if they were just a part of your imagination all along.


"Courts are now the final arbiters of most everything"

Most of what has been in the topic, up until now, was quite reasonable. Contrary to some, a few judges are more “activist” than they should be, but this is just a bit more than an overstatement. The Supreme Court has almost no say at all in most things.

"they even have the baffling power to overturn a state's own Constitution."

They cannot overturn an established constitution. The only way they can overturn a constitution is if a new state made, in which its drafted state constitution is inherently against the federal constitution. But, I think you meant proposed changes to a state constitution, in which case, under the 14th amendment, the Supreme Court has the duty to overturn an unconstitutional amendment to a state constitution. How just would it be if a state made an amendment saying that certain people -- whomever they wished to silence -- don't have a right to speak at all? I am glad that they can overturn unconstitutional state amendments.

"The constitution was amended so as to make slavery illegal. Thats the way your supposed to change it."

Unfortunately, the US judicial-legislative system isn't perfect, and it needs to, or should, be changed. There is a gap in what the legislative branch can do effectively and what ought to be done to keep order among the states, because the amending process is difficult. And, I like it being difficult; it assures that the vast majority has to agree with something, in order for it to become the “supreme law of the land”. (Something like 10,000 amendments have been proposed, and we only have 26.) While the politics hinder some decisive change, the Supreme Court can take a moderate stand, in order to keep some semblance of order, in between the time it takes to have a really definite stand on an issue by the Congress. While the Judicial Branch does not "legislate", it makes federal judgments in the absence of law, maintaining order, by setting boundaries. It would take unprecedented cooperation of the states to fill the holes that the courts do. This hole was quite unforeseen by the founding fathers. E.g., much of Supreme Court rulings are made in regard to economics and trading. The Senate and House are too slow to be effective, in some cases. This is where the problem is. While the Supreme Court’s intervention in some areas is quite necessary and proper, it is starting to verge on being a separate entity, which guides where the law can go, when it should not be doing so, i.e. making the federal law more specific than it ought to be. A government tends to be more efficient if the laws get more and more specific at the local levels – but how specific does the federal law need to be to keep all the lesser laws on the same plane? Anyways, there is difficulty in limiting what the courts should do, in order to carry out their needed role, because the ends are so dependant on the means, in the case of the courts. If they continue creeping out of where their domain ought to be, though, some laws will need to be made to keep them in-line…its actually kind of a catch 22, the law to limit their powers would have to be an amendment, which are difficult to pass…they have taken their role in social change too seriously, since the civil rights decisions…someone shoot me, I’m starting to sound like Scalia. (I hope I wasn’t hopelessly vague:S)