Sunday, February 05, 2006

The "New" Supreme Court

I've been purposely holding off commenting on the selections of John Roberts and Samuel Alito to the high court -- mostly because I wanted to see how the process played out. The "vetting" process by the Senate is badly flawed. The fact of the matter is, I'm most interested in knowing how a particular judge intereprets the law -- not in their personal politics. As a matter of course, most judges put their personal beliefs aside in reaching a decision on a case, and there was clearly no evidence that either Justice Roberts or Justice Alito would use their new role to advance private political agendas. While a judge's interpretation of an unprecedented case may be informed by their background, most judges who make it to courts of appeal or the federal bench at all are solid jurists who apply the law, not their opinions to the case. This is why the Republicans missed badly on Justices Kennedy and Souter, and why the Democrats made themselves look like fools when they spent their time pontificating during the confirmation hearings of the new Justices -- they failed to fully appreciate (or care) that candidates for the highest bench in the land are by and large going to interpret the law as it exists -- not as they wish it to be. Legislating from the bench is the quickest way to stall your career as a judge (Justice Scalia being the obvious exception). So while it's way too early to uncover any trends from Justices Roberts and Alito, I'm not too concerned that they'll be listening to a political party rather than the Constitution in deciding cases. They seem much more pragmatic than dogmatic.

3 comments:

Anonymous said...

very interesting, Juan. what do you make of all the recent hubbub about judges (e.g. Supreme ones) doing just that (legislating from the bench, "activist judges")?

Tarzan Joe Wallis said...

It's a misapplied label. Somehow judges have been grouped into "strict interpreters" of the Constitution vs. "liberal interpreters" (or the "activist" judges), which are misnomers.
"Strict interpreters" approach the Constitution as an unchanging document -- one has to look at the framers' original intent to determine how to decide a modern issue -- for example, because the framers did not explicitly spell out rights of personal privacy, the only such rights that exist are those ennumerated by the Bill of Rights -- no more, no less.

"Liberal" interpreters approach the Constitution as a living, growing document -- the framers could not possibly have considered all possible scenarios and historical development -- the idea being that one should look to the framers' intent, but where that isn't conclusive you have to read between the lines.

The reality is, most judges (the Supremes included) move back and forth between these positions depending upon their understanding and interpretation of precedent. When the Democrats are in power, they complain about strict interpeters. When the Republicans are in power, they complain about liberal interpreters - -this has less to do with the judges than the politics of the issues the Supremes are deciding...

Jeff Cagwin said...

belated thanks for the helpful reply...