(no subject)

[gunslnger.livejournal.com]

Judge’s Harsh Words for High Court

Since the 1930s, the Supreme Court has ordered lower courts to review economic regulations with an extremely deferential “rational basis test,” which requires only that such regulations be “rationally related” to a “legitimate government interest.” In practice, this amounts to no meaningful review at all. Courts applying the rational-basis test have concluded, for example, that states may shut down unlicensed florists to protect consumers from the hypothetical dangers of stray corsage pins. Indeed, the test is so deferential that one federal court of appeals upheld a law that restricted the sale of caskets for the sole purpose of “dishing out special economic benefits” to licensed funeral directors.

I'm glad there's some judges (at least one) that are able to see the problems that they're perpetuating. Even SCOTUS decisions need to be reviewed and reconsidered at some point just to make sure that we don't get locked into something that is actually untenable over the long term. And this isn't even dealing with actual decisions but merely with the guidelines for how to come to a decision, which should be much more flexible than they apparently are. I totally agree with Judge Brown's opinion here.

Comments

[kylinrouge.livejournal.com]

Her vote, she explained, was compelled by decades of bad U.S. Supreme Court precedent.

Ahahahahahahaha!

The side-links on this website! Holy shit the Romney worshiping! This is a great website!

Anyway thanks for the laughs. Personally I think the Constitution is a useful, but ultimately outdated piece of paper and it needs a more modern replacement. We're the only ones left to use such an old document and it's so deliberately vague that our rule of law has basically been shaped by 'interpretations' that put the rule in law more in line with other developed countries. The SCOTUS precedents I would say have more value to this country than the Constitution itself, because they represent a more modern view of society. Of course, reasonable people can differ.

[fizzyland.livejournal.com]

As well as the other kind.

[gunslnger.livejournal.com]

The website's irrelevant to the article and to the judge's opinion.

Personally I think the Constitution is a useful, but ultimately outdated piece of paper and it needs a more modern replacement.

I agree, but there's a procedure for that. Just ignoring it or violating it doesn't help us.

[kylinrouge.livejournal.com]

I don't see the problem. Can't states basically do anything as it is?

[gunslnger.livejournal.com]

No, they are limited by the Constitution as well, to a different extent.

[rimpala.livejournal.com]

Again this is a tough call

If we were tasked with making a new constitution I somehow doubt it would be anything less then "Give the 1% all the power, screw the little people".

It would allow the richest of our country to claim absolute power, and maybe allow them to herd a few of the un-privileged of this country into death camps, because why not they're making the rules now...

[muscadinegirl.livejournal.com]

I agree. The last thing we need to do is to change the Constitution.

[a-new-machine.livejournal.com]

And if the rule were strict scrutiny, would it need frequent review to ensure that it remained good? Or would that be OK because it agrees with your views of how the commerce clause should work?

[gunslnger.livejournal.com]

What could ever be bad about having more scrutiny?

[a-new-machine.livejournal.com]

Well, it functionally limits what government can and can't do. Obviously if government should be doing X, then making them jump through more hoops to do X is bad.

[devil-ad-vocate.livejournal.com]

And who or what court would have the authority to "review" decisions of the SCOTUS? ANY future sitting Supreme Court? That would politicize the SCOTUS to the point where no one would respect their decisions. What a stupid idea.

[gunslnger.livejournal.com]

These federal appeals court justices, for one. Or at least to be able to identify whether something ought to be reconsidered when a new case is brought.

[geezer-also.livejournal.com]

Wait what? WOULD politicize the SCOTUS????

[existentme.livejournal.com]

Yes, tyvm.

[devil-ad-vocate.livejournal.com]

Point well taken. I suppose any 5-4 decision is politically motivated, if the Court is split 5-4 Republican/Democrat (or if the reverse were true). My problem with "reviewing" a decision is that there would essentially be NO final word on any decision. The Constitutional concept of justice becomes meaningless.

[gunslnger.livejournal.com]

The "review" being asked for here is not a review of a particular case, but merely that precedent and procedure not be taken as gospel every time but actually be reviewed every so often to make sure they still apply and are good/useful.

[devil-ad-vocate.livejournal.com]

That still sounds like a court of "review" that would have authority beyond the SCOTUS level. I always presumed there was a reason it is called the SUPREME Court. Maybe we could call the reviewing body the OMNIPOTENT COURT.

[gunslnger.livejournal.com]

I don't know where you're getting that idea, honestly.

[geezer-also.livejournal.com]

Maybe I don't understand the concept either, because I seem to be seeing it the same way.
I go back over this post (I just got home) because it feels weird to be agreeing with him and not you :D

[gunslnger.livejournal.com]

Did you read the linked article?

[geezer-also.livejournal.com]

And I agree with your point that it is a terrible idea to have some kind of review board :).

[rimpala.livejournal.com]

The More Supreme then the Supreme Court of the United States

er...

TMSTTSCOTUS

.. at some point I think acronyms are kind of useless...

[abomvubuso.livejournal.com]

Eish, I think I need a new dictionary of abbreviations.

[underlankers.livejournal.com]

This the same Supreme Court that ruled blacks were never citizens of the United States in the 1850s and that refuses to rule on meaningful issues from pure cowardice? I don't think it's ever ruled in a fair and righteous sense.

[a-new-machine.livejournal.com]

What issues are they refusing to rule on out of "cowardice"?

[underlankers.livejournal.com]

For one thing the War Powers Act, which is IMHO unconstitutional but the Court will never rule on it. The Court never cared about wading into politics in the old days, it's just an excuse now.

[the-rukh.livejournal.com]

I think the reason was that it'd be a huge power grab for the supreme court to make such a ruling for or against either branch.

[meus-ovatio.livejournal.com]

The SC can't just pick shit out to "rule on". Someone has to bring a suit. And the Congress and the Executive have an unspoken agreement to never go to court about it.

[dexeron.livejournal.com]

Plus, there are rules restricting which cases they're ALLOWED to take, depending on standing, political questions, whether the question has become moot, etc. Now, mabye they do take ADVANTAGE of these restrictions to avoid taking on certain... controversial... subjects... but I think it's more that they're just not allowed to.

[rimpala.livejournal.com]

Second guessing the Supreme Court? Hmm, it's something to tread lightly on at least, like this doesn't include reconsidering Constitutional amendments does it?

Second guessing the Suupreme Court?

[russj.livejournal.com]

The liberal-leaning 9th circuit court is always doing this. That is why it's decisions are overturned so often.

http://articles.latimes.com/2009/jun/29/local/me-9th-scotus29

That is why so many people call it an 'activist' court.

[rimpala.livejournal.com]

A personal concern of mine in particular is LGBT rights, the ones that exist are due to a few Supreme Court decisions. Whatever is decided upon, I'd rather like for the country to continue in a way that the high courts can't just decide to retract such decisions and allow anti-gay laws like what you would encounter in Uganda or Iran.

[gunslnger.livejournal.com]

If you want them to be protected rights then they need to be in the Constitution. Laws and court cases do not create rights, they can only protect or enforce them.

[devil-ad-vocate.livejournal.com]

"People" call a court 'activist' because they don't agree with a decision. That's not hard to understand.

[russj.livejournal.com]

Yes, even presidents who don't agree with a decision call a court 'activist' ;)

[gunslnger.livejournal.com]

this doesn't include reconsidering Constitutional amendments does it?

Are those court cases somehow? Those are for the people to reconsider, not the courts.

[yahvah.livejournal.com]

Has there ever been an instance of a Supreme Court justice being impeached? If not, then I suggest we blot out the part where it says shall hold their Offices during good Behavior because everyone knows "good Behavior" implies judges are not to be scrutinized. No, of course "good Behavior" means if they fuck a prostitute in Europe, they get impeached, but they can get away with having an opinion which is in stark contrast to the will of the people (see Federalist 78) as it's embodied in the constitution.

[telemann.livejournal.com]

Samuel Chase was impeached and removed. Specifically on this post's concerns: judicial review.

[yahvah.livejournal.com]

Wikipedia says he was acquitted.

[telemann.livejournal.com]

Hey I got half of it right. :P

Economic due process

[russj.livejournal.com]

The U.S. constitution says: "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." (Amendment V)

The judge is correct about the trends of the past 100 years or so.

There was a time when property rights were considered 'fundamental' by the Supreme Court, and thus laws which infringed upon them were subject to stricter scrutiny.

A pivotal case often cited is Lochner v New York, which upheld this so-called 'economic due process'.
http://en.wikipedia.org/wiki/Lochner_v._New_York

It is possible that the court simply became weary of battling the executive and legislative branches of government, who wanted ever more power. It increasingly ruled that in property rights cases, the public must resort to the ballot box to redress their grievances, because the court would no longer do so.

Dr. John E. Finn, Professor of Government at Wesleyan University says that privacy rights have largely replaced property rights in today's society.
http://www.thegreatcourses.com/tgc/courses/Course_Detail.aspx?cid=8530&utm_campaign=bazaarvoice&utm_medium=searchvoice&utm_source=ratingsandreviews&utm_content=default

I consider property rights to be fundamental to securing the liberty of all people against government oppression, in agreement with the 5th amendment. The proper remedy is to elect presidents who also hold this view, and who will appoint Supreme Court justices who will enforce this view.

[underlankers.livejournal.com]

Jefferson Davis and Alexander Stephens approve of this message. Now, buddy, as my ancestors were Confederates, what about their property rights?