CDZ Courts involvement in social movements

[wbrown15]

Hello,

I am a student at Indiana State University and I am currently taking a policial science class. We have a discussion this week about how courts at the state level as well as the federal level are involved or not involved in regards to social movements such as same sex marriages, abortion, and other hot topics.

My question is what is the court's involvement in social change movements. Do they have the power to enact change or are they overstepping their boundaries of their duties? Just how involved are they?

 

[The Great Goose]

Depends on the views of each individual judge and who (or what) appointed them.

 

[320 Years of History]

Hello,

I am a student at Indiana State University and I am currently taking a policial science class. We have a discussion this week about how courts at the state level as well as the federal level are involved or not involved in regards to social movements such as same sex marriages, abortion, and other hot topics.

My question is what is the court's involvement in social change movements. Do they have the power to enact change or are they overstepping their boundaries of their duties? Just how involved are they?

I think you'll find sufficiently comprehensive and well thought out answers to your questions here

• The Origin and Current Meanings of Judicial Activism
• Making Law: The Case for Judicial Activism
• BEYOND JUDICIAL ACTIVISM: WHEN THE SUPREME COURT IS NO LONGER A COURT
• An Intellectual History of Judicial Activism
• Judicial Restraint Reappraised
• The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights
• The Rise and Fall of Judicial Self-Restraint
• Justice Sandra Day O'Connor: Trends Toward Judicial Restraint
• Editorial in a conservative publication -- The Quandary of Judicial Review

I'm sure quickly perusing all the documents above and closely reading two of them will found you adequately for a discussion. I suggest reading all of them closely if you must write a paper on the topic.

 

[JakeStarkey]

Courts in America have always reflected and been part of culture and society.

 

[320 Years of History]

Courts in America have always reflected and been part of culture and society.

"Part of," yes. "Reflected," not necessarily. Indeed, one of the reasons for there being courts is to have a means for reason to prevail over popularity and perception.

 

[jwoodie]

Judges are like religious leaders. Both can find a rationale, in law or scripture, to justify the imposition of their values on others. The genius of the American system of government was to disperse these edicts as widely (and locally) as possible, thereby making them more accountable to the people they affect.

However, social "reformers" found that they could bypass these checks and balances by expanding the role of the judiciary, especially at the federal level, to include "judgements" which could be used to enforce their personal beliefs. As a result, the Third Branch of our government has not invested itself with legislative, as well as judicial, power. Combined with the growing power of the Executive Branch, this has left Congress as little more than a feckless debating society.

 

[Elvis Obama]

Courts in America have always reflected and been part of culture and society.

"Part of," yes. "Reflected," not necessarily. Indeed, one of the reasons for there being courts is to have a means for reason to prevail over popularity and perception.

Did you ever see "Judgement at Nuremberg"? How often do people stand up to corruption and successfully oppose it? Can you doubt that popular sentiment, not judicial reasoning, was behind recent SC decisions on same sex marriage, or gun rights, in Heller? The very notion of progressive and conservative justices gives lie to the notion of judicial objectivity, of concepts like "strict constructivism" or "judicial activism". Are there conservative and progressive plumbers, or surgeons?

Now, I'm not saying there isn't a conflict between the purity of the law, as taught in our law schools, and the real world, where people play conservative or progressive hero. Roberts could have been a conservative hero if he'd struck down Obamacare. He didn't. Why? He had a legitimate legal qualm, and he cared how Lawrence Tribe and other professors would be teaching about him in the future. Four other justices apparently didn't have those qualms. SC Justices have a great deal of independence, but they are answerable to the human race, in different segments. To the political machine that they must master to even be considered for a SC position, to the wider ideological base that they are presumed to represent, to their own circle of friends and acquaintances, and to the legal profession as a whole. Sometimes judicial purity rules, and sometimes it most certainly does not.

To answer the OP, of course, the courts have long been used as a tool for political change. That's what they're there for. To hear grievances. Do you feel you have been denied a constitutionally guaranteed right? To attend any public school? To marry the person of your choice? To prevent abortions? If the court says yes, things change. If no, back to the drawing board. Find a different approach, a different law, a different defendant. Hope for a different balance on the courts.

 

[320 Years of History]

Did you ever see "Judgement at Nuremberg"?

No.

How often do people stand up to corruption and successfully oppose it?

I can't give an enumeration of all of those occurrences, but I'd say there have been quite a few such instances. I can, however, think of a few that should be well known to most Americans. One of the most poignant is Brown v. The Board of Education of Topeka, KS. Another is Roe v. Wade. Others include, but are not limited to:

• Marbury v. Madison -- "A law repugnant to the Constitution is void."
• McCulloch v. Maryland -- "Let the end be legitimate … and all means which are … consistent with the letter and spirit of the Constitution, are constitutional."
• Plessy v. Ferguson -- "Jim Crow laws are constitutional under the doctrine of ‘Separate but Equal."
• Munn v. Illinois -- "Businesses that serve the public interest are subject to regulation by state government."
• Schenck v. United States -- "Speech that presents a “clear and present danger” to the security of the United States is in violation of the principle of free speech as protected by the First Amendment to the Constitution."
• Near v. Minnesota -- "The liberty of the press … is safeguarded from invasion by state action."

One can find quite a few more. The point, of course, is that in many cases, what constitutes "corruption" (wrongness) is a matter of on what side of an issue one falls. If one likes the Court's decision, "the court is upholding the Constitution." If one does not like it, "the court is 'packed' with judicial activists." If one is of a mind that people are somehow prevented from exercising their Constitutional rights, "the system/Court" is corrupt." In reality, few, if any matters of corruption are binary or objective in nature.

Can you doubt that popular sentiment, not judicial reasoning, was behind recent SC decisions on same sex marriage, or gun rights, in Heller?

Yes, I can. Though I don't agree with every SCOTUS decision, upon reading the opinion and dissenting positions delivered by the various Justices, I pretty much without exception, as go modern decisions, see legal reason on both sides. I accept that in addition to the law each Justice's gut may tell them to favor one side's arguments over another.

I don't think it's a matter of there being legal insufficiency or reason on either side of recent SCOTUS matters, but rather the weighting the individual Justices place on the various legal facts and social mores that pertain to the case. For example, at the the end of the day, I think a woman's right to choose what goes on with and inside her body carries more weight than does any rights an unborn fetus may or may not have. As far as I'm concern, what the born want/need matters more than what we presume an unborn fetus wants/needs, even if that fetus' presumed need is merely to survive.

The very notion of progressive and conservative justices gives lie to the notion of judicial objectivity, of concepts like "strict constructivism" or "judicial activism". Are there conservative and progressive plumbers, or surgeons?

Well, yes. In your contextual meaning, there are certainly more and less conservative surgeons. Some surgeons will pursue a riskier approach to performing a procedure, or undertake a procedure that carries more risk/uncertainty of outcome(s), is more innovative and thus less "tried and true," and there are others who absolutely won't do that. I don't know if there are similar situations applicable to plumbing (because I know very little about plumbing and when I engage a plumber, I don't care what solution approach they apply so long as when they are done it works and I don't anytime soon have to readdress the same problem), but plausibly a "fix it or replace it" recommendation (or perhaps some other recommendation, such as one or another size/type of water heater, or whether to use copper or PVC pipes, etc.) a plumber might make to a customer is a reflection of their conservatism or progressivism/liberality with regard to their trade and its practice.

Both plumbers and surgeons, like Court Justices, are offering and have informed opinions, yet different ones may one some topic(s) prefer one approach to another. What be that other than the individuals being more or less conservative? Other than their weighing the relevant factors and advocating for a more or less conservative solution approach?