Supreme Court - Do You Care?

[HockeyGod]

I have been intently listening to the confirmation hearings of Ms. Elena Kagan and I did the same for Justice Sotomayor. As a liberal and a scholar in the areas of psychology and sociology, I understand that as humans it is nearly impossible for us to make decisions based on some one undeniable truth. Our realities are compiled by facts but also our interpretation of the facts. I mean, if we all were just able to rely on facts and come to the same decisions why does the Supreme Court regularly have 5-4 votes.

I wrote this post for 2 reasons. It is not meant to be a bad and ugly post, but more commentary upon which others can comment.

1. I'm frightened of the Supreme Court. I'm particularly frightened of Chief Justice Roberts and Justice Alito, both of whom are so conservative they make Dick Cheney look like Rachel Maddow. It is frightening to see how a slight majority in the Supreme Court sends shock waves through society.

2. I'm disheartened by general apathy for the confirmation process - or for government in general. It saddens me that our great nation contains a significant amount of people that couldn't name one Justice, let alone nine.

Just some thoughts on the Supreme Court as I continue to reflect on how society has progressed and regressed during my short life.

[DarklingAlice]

1) I would not say that I am frightened of the Supreme Court. Indeed, even when not agreeing with their decisions, I do tend to respect them far more than the other branches of government. This is because of their burden of delivering exhaustive, written and archived, opinions based on precedent and reason. And I am hesitant to say that any of them, regardless of liberal or conservative bias, would not strive to present only opinions in accordance with the constitution, precedent, educated opinion, and logic (well, I would hesitate to say that of any of them but for Scalia). If only such a burden were attached to the Executive and Legislative branches! Do I like all of the decisions the court has recently made? No. Very much no. But I must admit a certain admiration for the system.

2) I agree with the second part completely. And this is the bit that terrifies me. The apathy surrounding government, politics, and history in America is horrifying. Doubly so because the lack of education in these matters and the people's lack of accomplishing the simple task of educating themselves allows for vast swathes of society to be manipulated by punditry.

[RubySlippers]

1 >>> The Supreme Court is what it is, but compared to the other two branches seems to get it right enough for me. And you can't make everyone happy on decisions someone will always find something wrong with each years cases.

2 >>> The fact is its pathetic. I keep talking about say the recent Health Care Law and people have no clue how hare repealing this will be. In practice you need the Repblicans to control the majority of the House (50.1%+ of the seats), the higher majority in the Senate (60 or more seats, 60%) and contol the White House any one of these is not there it won't be done. They also think the courts will overturn the law not recognizing they often will say part of a law is unconsitutional and the rest is fine so they could possibly say the mandate to get care of indiiduals is unconstitutional and leave the rest in place. I'm a firm believer to be a voter one should be passably informed and understand the workings of government. Its true I'm not up to snuff on the Highest Court but I'm not good with names period but at least one should know what they and other branches do and can't do.

[HockeyGod]

1) I would not say that I am frightened of the Supreme Court. Indeed, even when not agreeing with their decisions, I do tend to respect them far more than the other branches of government. This is because of their burden of delivering exhaustive, written and archived, opinions based on precedent and reason. And I am hesitant to say that any of them, regardless of liberal or conservative bias, would not strive to present only opinions in accordance with the constitution, precedent, educated opinion, and logic (well, I would hesitate to say that of any of them but for Scalia). If only such a burden were attached to the Executive and Legislative branches! Do I like all of the decisions the court has recently made? No. Very much no. But I must admit a certain admiration for the system.

I appreciate this comment, thanks DA!

[Trieste]

I actually think that the 5-4 votes are not necessarily along liberal/conservative lines per se. I do think that conservatives tend to be more strictly constructionist than liberals are, though, and therein lies the divide. It's not always about party lines, but more about social policy - and when it comes to social policy, Roberts and Alito both bother me. I would never elect them to office... but I think they make okay justices.

[Will]

1. The Supreme Court does worry me.  I don't consider writing out opinions to be all that strong a safeguard on the power they wield.  The constraints of constitution, precedent, educated opinion, and logic still leave a frighteningly wide berth.

2. The widespread apathy is a problem.  The sad fact is that it's all too easy to fall into it.  It does often seem like government serves government and nobody else, no matter who gets voted in.  Don't mistake me; I'm not trying to justify the apathy, only explain it.  I can't bring myself to get mad or indignant about people not caring.  It does make me depressed, though.

[MasterMischief]

What kind of concerns me is that law (the Constitution?) is supposed to be written in such a way that everyone understand exactly what is meant.  I mean, there is a reason it is legalese, right?  So why do still end up with a 5-4 split?

[Hunter]

What kind of concerns me is that law (the Constitution?) is supposed to be written in such a way that everyone understand exactly what is meant.  I mean, there is a reason it is legalese, right?  So why do still end up with a 5-4 split?

Unfortunately, some of it IS politics.   Other times, it's because the dissenting judge or judges feel that opinion is more important than 'justice'.    The law changes not because of Congress but because a judge (or group of judges) think that their opinion is the correct one, irregardless of the system.

There's a term for it: "Legislating from the bench".

[HockeyGod]

I don't believe that to be true. Take a look at the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is not written in legal jargon and is not clear. I am a strong advocate that there is no one truth. I can say it's hot and you can be cold - which is the truth? There are facts that surround this - it is 50 degrees, you're wearing shorts and I'm in jeans. It doesn't change my one truth that it is hot. In the case of the Second Amendment, there are no details. What you read above is the entire Amendment. This was written in a time when the "arms" had the same chance of harming the target as the shooter. The forefathers didn't consider that we would invent automatic weapons, weapons of mass destruction, etc. Those are all "Arms." It is up to the Courts to interpret the Constitution within a current social context. They create precedent that can be upheld or changed. In this instance it could be interpreted (among other interpretations):

1. Anyone has the right to own a gun.
2. Any State has the right to create a Militia and the individuals in the Militia have the right to bear arms.

That is the crux of the issues with the Constitution and why ideological values of a nominee to the Supreme Court are vetted.

PLEASE DO NOT USE THIS THREAD TO DEBATE GUN RIGHTS. It was an example.

[Hunter]

That is the crux of the issues with the Constitution and why ideological values of a nominee to the Supreme Court are vetted.

Ah, but that's where precedent comes into play.  What I'm referring to is when precedent and legal history is ignored because of politics (or 'political correctness'). It's not always a bad thing but it's not really what the Supreme Court is supposed to be doing in the first place.

[Serephino]

It is sad that many people would rather sit and watch reality TV than know what's going on in their own country.  I can't name justices, but I do have a grasp on how the government works.  I also pay attention and vote. 

If I remember my Civics lessons right, the Constitution was written so it could be easily understood, but a lot of things were left open ended.  Our founding fathers did this because they wanted it to last, and they knew things would change.  And since they didn't have a crystal ball to peer into the distant future, they needed something adaptable.   

[Shoshana]

1. I'm frightened of the Supreme Court. I'm particularly frightened of Chief Justice Roberts and Justice Alito, both of whom are so conservative they make Dick Cheney look like Rachel Maddow. It is frightening to see how a slight majority in the Supreme Court sends shock waves through society.

Lol! Great line.  ;D

Honestly, though, neither Roberts nor Alito scares me; nor does Scalia, for that matter. Yes, I'm quite liberal, but sometimes I agree with the other side. The issue of eminent domain comes to mind; as I recall, Roberts, Alito and Scalia wanted to keep it scaled back; it was the liberals on court who let it run amok, so that we now have a situation wherein eminent domain can be used to take peoples' private property and businesses in order to turn said property over to coorporations. To me, that's a horror; I think eminent domain should be used only for public services like roads and bridges; not to benefit a cooporation, even if a coorporation says it can make the neighborhood better.

I also agreed with the conservatives on the court on the hand gun issue in D.C. I don't know if I'd want to own a hand gun, but, in my interpretation of the Constitution, no city should be able to ban its citizens from owning them (except for failed background checks.)

Hmm. I can't think of anything else, offhand, that I agree with these guys on! But there must be something.  ;)

Meanwhile, I like Kagan. And I promise that's not just because she's a fellow female and a fellow Jew! :P

[Oniya]

I just heard that Kagan supports cameras in the Supreme Court.  Whether or not one supports her political leanings, having the ability for the general public to observe the goings-on is yet another way to ensure that the system is working in the interests of the American People.

[RubySlippers]

I don't believe that to be true. Take a look at the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is not written in legal jargon and is not clear. I am a strong advocate that there is no one truth. I can say it's hot and you can be cold - which is the truth? There are facts that surround this - it is 50 degrees, you're wearing shorts and I'm in jeans. It doesn't change my one truth that it is hot. In the case of the Second Amendment, there are no details. What you read above is the entire Amendment. This was written in a time when the "arms" had the same chance of harming the target as the shooter. The forefathers didn't consider that we would invent automatic weapons, weapons of mass destruction, etc. Those are all "Arms." It is up to the Courts to interpret the Constitution within a current social context. They create precedent that can be upheld or changed. In this instance it could be interpreted (among other interpretations):

1. Anyone has the right to own a gun.
2. Any State has the right to create a Militia and the individuals in the Militia have the right to bear arms.

That is the crux of the issues with the Constitution and why ideological values of a nominee to the Supreme Court are vetted.

PLEASE DO NOT USE THIS THREAD TO DEBATE GUN RIGHTS. It was an example.

I think on that issue they are voting well they clearly inist there be some right to bear reasonable weapons for defense. I'm far more concerned with things like eminant domain and land use rights, rights of parents to homeschool and other areas of legislation they have to make case law on.

[Trieste]

I just heard that Kagan supports cameras in the Supreme Court.  Whether or not one supports her political leanings, having the ability for the general public to observe the goings-on is yet another way to ensure that the system is working in the interests of the American People.

Like, on the deliberations?

[Oniya]

In smaller courts, deliberations have been kept off camera (referencing the jury deliberations).  I believe that when cameras in the SCOTUS are proposed, they mean for it to be the same as when you have cameras in the smaller courts - that is, filming the lawyers' arguments and the judges' final decisions.  I wouldn't be personally opposed to showing the deliberations - after all, there is no presumption of anonymity among the Supreme Court Justices as there is with a lower court's jury - but any little bit would be more than we have now.

[Synecdoche17]

People get up in arms about Supreme Court hearings because they think the President's trying to put a friend or a political stooge into place; yes, he is. It's always been this way. Look back at Supreme Courts past and you'll see that many of the people on them obtained the positions purely through connections. Only in recent years have we come to believe that the law is some lofty, immutable ideal which must be adhered to at all costs - and that belief is itself a sort of sneaky conservative propaganda, a reaction against justices who *did* insert their personal opinion into law, for which we are grateful, because they were ahead of their time. The Warren court did more for freedom and liberty in its time than all the guns ever afforded by the Second Amendment.

I am not listening to the confirmation hearings; what I know of Kagan's jurisprudence, through articles I have read on her dry and technical approach to contentious issues, satisfies me that she is competent to be a judge; whether she is a "judicial activist", a "results-oriented judge", or a lesbian, to cover the three most common attacks on her, does not matter to me at all.

[Trieste]

In smaller courts, deliberations have been kept off camera (referencing the jury deliberations).  I believe that when cameras in the SCOTUS are proposed, they mean for it to be the same as when you have cameras in the smaller courts - that is, filming the lawyers' arguments and the judges' final decisions.  I wouldn't be personally opposed to showing the deliberations - after all, there is no presumption of anonymity among the Supreme Court Justices as there is with a lower court's jury - but any little bit would be more than we have now.

On the one hand, I think it would be enlightening. On the other hand, I think that it's important that there is a place where the justices are allowed to be frank with one another as professionals and colleagues without the media hanging over their heads. I'm extremely ambivalent about putting cameras in on deliberations.

I am not listening to the confirmation hearings; what I know of Kagan's jurisprudence, through articles I have read on her dry and technical approach to contentious issues, satisfies me that she is competent to be a judge; whether she is a "judicial activist", a "results-oriented judge", or a lesbian, to cover the three most common attacks on her, does not matter to me at all.

This. I read up on Kagan, at first worried about a Supreme Court justice who has never been a judge. However, my reading has satisfied me as well.

And I think a lesbian on the Supreme Court is not a bad thing. Harrumph.

[MasterMischief]

And I think a lesbian on the Supreme Court is not a bad thing. Harrumph.

It saddens me this even needs to be said.

[Oniya]

On the one hand, I think it would be enlightening. On the other hand, I think that it's important that there is a place where the justices are allowed to be frank with one another as professionals and colleagues without the media hanging over their heads. I'm extremely ambivalent about putting cameras in on deliberations.

I'm actually fine with deliberations being private.  I'd love to see the argument in front of the Court, however.

[Brandon]

I dont really feel like being informed about who is serving, has served, will serve on the supreme court is something that matters. Unlike political positions like Governers, senators, or president I dont get to cast a vote and make my choice on what those people stand for or their interpretation of the law and constitution. Its similar to how I dont get to choose who gets hired as the manager of the local supermarket. That said, I dont see why these meetings should matter to me, the people in higher positions will choose who they want to choose and she will be chosen, or not.

Now if I did have a direct choice of who was or wasnt chosen for supreme court decisions I would do the same thing I do with politicians, which is inform myself on where the candidate stands and their priorities.

[Callie Del Noire]

Eminent domain, the hijacking of copyrights (extending them ad infinitum, revoking public domain items back to copyrighted status) and stuff like that bothers me. And it's all coming into the Court's purview sooner or later.

With the Eminent domain issue a LOT of states moved to take the option to do what the corporations could do with the ruling and redefined the laws to protect from such actions (except in some jurisdictions)

[auroraChloe]

2.  It does often seem like government serves government and nobody else, no matter who gets voted in.   

this.  is so disheartening. 

they sell their line of 'inevitable crap' but are really just working toward getting elected over and over.  i believe there should be stricter term limits all around. 

i do care about the supreme court, and i can't name every one of them.   

my question is, if the constituion is a 'living document', then aren't they supposed to interpret the constitution as it relates to the days society?

[Oniya]

my question is, if the constituion is a 'living document', then aren't they supposed to interpret the constitution as it relates to the days society?

Yes.  Yes, they are.

[Jude]

The problem is that the "constitution is a living document" concept is very much scorned by traditionalists in general.  They don't want things being reinterpreted in light of current situations, they want the law to remain static and they don't want our society to progress because (for various reasons) they believe it isn't necessary and would be moving away from the model of success that got the United States where it is today.

I agree somewhat, there's certainly something to be said for a lot of the rights and privileges that we extend to citizens.  We have created our own success to a certain degree, but when you look at history, it's fairly evident we've gotten lucky and used underhanded tactics to get what we want at times too.  It certainly helps that over the course of our history, we've acquired a ridiculous amount of territory to expand into while other colonial empires shrank in influence and landmass.  Our exploitation of Indians in stealing their land, Africans as slaves, and South Americans in the early 20th century surely played a part in our amassing of wealth and affluence.

The Traditionalist mindset envisions some Golden Age of America that existed in the vague 'before,' idolizes the Founders, and glosses over all of the sins of our past, arguing that instead of progress we need only harness the things that made us great before.  They've revised history to blot out the Imperialist ambitions America acted upon, to marginalize racism, and even glorify the revolution that founded this country (forgetting that George Washington started the French and Indian War by invading the Ohio River Valley with other settlers, which eventually led to the taxes we revolted over).  Our past is not pristine, but that doesn't mean that the Constitution is not without its merits.

The biggest problem I see is that "legislation from the bench" by interpretive justice (as I like to call it) is disconnected from the Democratic process.  Decisions reached by the Supreme Court are completely insulated, to the point that the Justices often do things that the majority of the American people disagree with.  These initiatives, pushed forth by unelected individuals, become sticking points and controversies in American Society which are almost unresolvable.  I would go so far as to say that they play a very large part in the political divisiveness that has manifested itself in our politics in a very extreme fashion.

Once something is mandated, essentially, by the will of the Justices (sure, it's based on logic, but ultimately it is their opinion) there is no going against it in a practical sense.  Sure, there are constitutional procedures for dealing with it, but it's far too impractical in our society to actually employ any of them (I believe they were set up for a much smaller nation).  The only way to have the decision overturned is to wait, change the make up of the court, and hope that the right people are nominated into the position (which again is out of the hands of the people).  Meanwhile, American Society rages back and forth over the issue and it becomes a hotbed of disagreement, anger, and resentment--just take a look at Abortion.  It probably would've been resolved awhile ago if it wasn't a Supreme Court based pronouncement.  Gay Marriage is shaping up to be the next issue, which I think will only serve to extend the life of the controversy long term instead of resolving anything.

To me, the solution is extremely obvious.  If you want the Supreme Court to have any accountability so that people actually pay attention to what they do, they need to be elected officials.  Our system of government was designed by people who had little faith in the public on the whole (think Electoral College and the way they described Democracy as Mob Rule), some things need to change.  Lifetime terms make it impossible to remove judges that show poor judgment (not that we'd see as it is, their secretive nature defeats any transparency there, and that needs to change too), so we would need to switch to 8, 10, or 12 year terms.

I agree there's a great deal of detachment from politics in our society, and there are even more people who have strong opinions, loud voices, and are wholly uneducated about the facts surrounding the issues.  Recognizing that problem, you can do one of two things:  take power away from the people and trust that whoever you do give it to will exercise it better, or give the people more power and hope that the weight of that responsibility wakes them up from their apathetic trance.  I think I'd prefer to go with the latter, because it's almost never employed, and far more just.

There are those who say people as a whole aren't capable of rising to the occasion, and I think it was Noam Chomsky who had the best rebuttal to that (though I don't necessarily agree with the indoctrination angle as much as the comments on wasted intellectual potential):

Take, say, sports -- that's another crucial example of the indoctrination system, in my view. For one thing because it -- you know, it offers people something to pay attention to that's of no importance. [audience laughs] That keeps them from worrying about -- [applause] keeps them from worrying about things that matter to their lives that they might have some idea of doing something about. And in fact it's striking to see the intelligence that's used by ordinary people in [discussions of] sports [as opposed to political and social issues]. I mean, you listen to radio stations where people call in -- they have the most exotic information [more laughter] and understanding about all kind of arcane issues. And the press undoubtedly does a lot with this.