SCOTUS Perspectives

Discussion in 'Current Events' started by Annie, Jan 14, 2005.

  1. Annie
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    Annie Diamond Member

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    High court justices hold rare public debate

    Fri Jan 14, 6:26 AM ET

    By Joan Biskupic, USA TODAY

    Shed of their black robes, Supreme Court Justices Antonin Scalia (news - web sites) and Stephen Breyer (news - web sites) engaged in a lively and, at times, amusing debate Thursday over whether foreign court rulings should be used in U.S. decisions.

    "We don't have the same moral and legal framework as the rest of the world, and we never have," said Scalia, who is one of the strongest voices on the high court against looking to foreign rulings to decide American cases.


    Breyer countered, "You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant."


    Sitting in upholstered chairs in the well of an American University auditorium, the two justices laid out their views in a rare public session. Their conversation was moderated by New York University law professor Norman Dorsen and co-sponsored by the U.S. Association of Constitutional Law and American University.


    Supreme Court justices increasingly have referred to foreign law but not without dissent in their own ranks or public controversy. In 2003, when the majority struck down state anti-sodomy laws, it mentioned that the European Court of Human Rights has affirmed the right of homosexual adults to engage in sexual conduct. A year earlier, when the majority barred the execution of mentally retarded convicts, it noted that "within the world community" such executions are "overwhelmingly disapproved."


    Some members of Congress have denounced such references. Last year, Rep. Tom Feeney (news, bio, voting record), R-Fla., introduced a resolution criticizing the court for citing foreign legal authority. The resolution drew several co-sponsors but was not adopted by the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he intends to reintroduce the resolution.


    Scalia and Breyer, both former law professors, appeared to relish expounding on their competing approaches. "I'm not preventing you from reading these cases," Scalia said, "just don't put it in your opinions."


    Scalia, who dissented from the gay rights and death penalty decisions, argued that the danger of foreign law is that it can be taken out of its native soil context or used only when it helps a position. "We are one of only six countries in the world that allows abortion on demand prior to viability," he said, noting that the Supreme Court majority has not been guided by that. "Do we just use foreign law selectively?"


    Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context.


    Breyer, who was named to the bench by President Clinton (news - web sites) in 1994, argued that judges can draw guidance - not hard rules - from foreign sources. He observed that the Supreme Court increasingly is faced with international problems, from global antitrust disputes to terrorism. "Those are the cases we're getting. And that reflects the truth about the world."


    There were many moments of levity between the two justices during the hour-and-a-half session that also was broadcast by C-SPAN.


    Breyer quipped at one point that he usually goes about his life unrecognized. He said that the few times people have asked him if he was on the Supreme Court, they thought he was Justice David Souter (news - web sites).


    Chimed in Scalia, "And he went along with it!"
     
  2. manu1959
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    manu1959 Left Coast Isolationist

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    "Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context."

    this concerns me.....context is important but should be determinative
     
  3. Merlin1047
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    Merlin1047 Senior Member

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    The charter of the Supreme Court is to make decisions in regard to constitutionality. Period.

    There is not now, nor has there ever been a basis for SCOTUS justices to broaden their references to any other documents other than the Constitution of the United States. Breyer does not have the authority to expand his references simply on his personal whim. By referencing other sources Breyer takes the path of all liberal judges who seek to amass more and more power to the judiciary by making rulings based not on law, but on their view of society. In Breyer's case, he seeks to make law based on his world view. That is nothing short of outrageous. He should be removed from the bench. And he should have his ass kicked for good measure.
     
  4. musicman
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    musicman Senior Member

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    I'd like to volunteer for the job of kicking Breyer's ass.
     
  5. ScreamingEagle
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    ScreamingEagle Gold Member

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    Summing up this judicial debate:

    Conservative Supreme Court Justice Scalia: I base my decisions on the U.S. Constitution.

    Liberal Supreme Court Justice Breyer: I base my decisions on foreign law and other world opinions.

    Isn't Breyer's approach grounds for impeachment?
     
  6. pegwinn
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    pegwinn Top of the Food Chain

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    Bad news is that Breyer does have the authority. It's the same authority that the other justices and the circut courts have. Each can interpret the law and the USC to death and have a law clerk write the opinion. The only balance is that he is but one vote on the bench. I wish they were required to source and justify the opinions. Even if no one can overrule them, at least we could raise the bs flag.
     
  7. Merlin1047
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    Merlin1047 Senior Member

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    Sorry, can't agree. The Constitution spells out those sources of law which the Supreme Court may consider when making a ruling. The Supreme Court does NOT have the authority to go outside those Constitutional restrictions.

    There's a fairly good article on the subject at the link below from which I extracted the following:

    http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Structure_and_powers

    Section 2:
    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (...)
    ================================================

    Breyer suggests that he has the authority to consider foreign law and apply it whenever he sees fit. That's baloney. If the court is considering a case which involves treaties, maritime law or the litigants are ambassadors, then it is authorized to avail itself of the appropriate documents in order to rule on that specific case. They are definitely not allowed to use foreign law when deciding a case which has as its basis the Constitution of the United States.

    The Supreme Court does not now, nor has it ever had the authority to amend the Constitution. By his effort to apply foreign law, Breyer is attempting to do exactly that in a typically sneaky liberal way. He figures that if he cannot find support for his lib views within the American Constitution, he will back-door the effort and get his references wherever he chooses.

    "You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant." That statement is simply outrageous. Yes, perhaps we can learn something from foreign governments, but that is not up to Breyer and the court to determine. That is up to the people.

    The people have entrusted the Supreme Court with the Constitution of the United States. It is the court's job to apply and interpret the Constitution, not to modify it by changing it's text or by importing concepts from foreign courts or countries. Breyer's attitudes are a clear indicator that either he fails to understand the charter of the court or that he places his personal whims above his sworn duty.

    In either case, it amounts to malfeasance and the bastard should have his slimy ass kicked to the curb. It is well past time that we the people demand accountability from not only our elected leaders, but from judges as well.
     
  8. pegwinn
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    pegwinn Top of the Food Chain

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    Actually I agree with you to the degree that we could sit down and drink beer and hammer out a working arraingement. But I think you are arguing what should happen and I am arguing what does happen. I believe that Justice B, along with a significant percentage of appellate or circut court judges, are already considering foriegn precedent and wiggling it into opinions. Thats the only possible way they could use the "living document" bs IRT the constitution. I absolutly agree that we should hold all elected or appointed officials accountable. In fact I agree so well that I will buy the first beer. But we couldn't try a lying president when the proof was there. I don't see removal of a supreme since we have no proof other than circumstantial.
     
  9. Annie
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    Annie Diamond Member

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    By the very nature of how the Founders wrote Article 3, it was bound to expand:

    Article III.

    Section. 1.

    The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

    Section. 2.

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Section. 3.

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.​

    That's it, the whole thing. It's the reason Marbury v Madison obviously came about while many of them were still alive, establishing 'Judicial Review' a power that is NOT enumerated.
     
  10. Annie
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    Annie Diamond Member

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    Old thread, but new perspective by WSJ editorial and how these 'philosophies' discussed earlier have practical repercussions:

    http://www.opinionjournal.com/editorial/feature.html?id=110006348

     

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