Justice Scalia sides with Delay on criticism of "evolving Constitution."

http://www.nytimes.com/2005/04/22/politics/22supremes.html?pagewanted=print&position=


April 22, 2005
3 Justices Respond Personally to Criticism of U.S. Judiciary
By DAVID STOUT

WASHINGTON, April 21 - Three Supreme Court justices gave rare, personal reactions on Thursday evening to criticism of the federal judiciary and agreed, not quite unanimously, that it does not bother them very much.

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Justice Stephen G. Breyer was similarly unruffled by what Tim Russert of NBC, the moderator of the justices' discussion at the National Archives, termed "a rising tide" of criticism against judges. "Our job," Justice Breyer said, "is to decide the case in front of us." He said he understood that occasionally "emotions run very high" in cases not just before the Supreme Court but the lower tribunals. Besides, Justice Breyer said, high emotions notwithstanding, "there's no talk of needing the paratroopers" to keep order in the streets.

"I dissent," Justice Antonin Scalia said, apparently not referring to the possibility of paratroopers but to whether the courts, and ultimately the American people, are being damaged by the intersection of law, politics and what some people characterize as an "evolving Constitution," a description that Justice Scalia generally does not endorse.

<snip>
Mr. DeLay also criticized Justice Anthony M. Kennedy for citing international law in writing the court's ruling in March barring the execution of juveniles. "That's just outrageous," Mr. DeLay said on Tuesday.

And on that point, at least, he got some support from Justice Scalia.

Justice Scalia said Thursday evening, as he did in dissenting from Justice Kennedy's majority opinion, that the feelings and practices in other countries were irrelevant in deciding what to do about the death penalty in the United States. And Justice Scalia repeated his oft-noted wariness of the notion of an "evolving Constitution."

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(edit for subject clarity)

I can see where they would find common ground.

I guess fascists can be psychos as weel...

Why didn't they ask the obvious question? "Well Mr. Scalia what do you think of this "Good Behaivor" test Mr. Delay is proposing? Do you think that would be a good thing or a bad thing for the Federal Judiciary?"

Bryant
Check it out --> http://politicalcomment.blogspot.com

to vote, the end of slavery of african americans, but really loves that he gets to pick a president....WAIT, I can't find that in the constitution!!!! um uh, I guess I have the librual evolved version of the constitution, not the Opus Dei version.

everything is irrelevent except his extraordinarily warped worldview.

Just goes to show how off his rocker Scalia really is. Even the White House has been trying to isolate itself from it.

He easily could have in this case.

Basically, all he's saying here is that his approach to Constitutional law is different from that of Justice Kennedy's. We didn't need this interview with The New York Times to learn that. All we needed to do was read the opinions of the two justices over the years.

If Justice Scalia called for the removal of Justice Kennedy from the Court for no better reason than that, as some right wing demagogues have, then we would have cause to be very upset with him. However, he didn't even come close to that.

In fact, that any judge would look outside the Constitution to justify a decision on a US Law matter bothers me.

Have you read Bush v. Gore?

Its a fucking travesty.

in the sense that law from other countries can assist in the interpretation of our obligations under international treaties, such as the Geneva Conventions, of course it is relevant. Furthermore, the term "cruel and unusual punishment" implies that we are subjecting ourselves to world opinion as well as our own.

I'm talking about any Justice that would quote Law from Japan, for example, and use that as proof text for a decision that should rest only with the US Constitution. In fact, I have yet to see any decision that could be properly rendered where the Justices need to go beyond the Constitution. That's why they're there, to intrepret the Constitution, not interpret the Constitution as it relates to law in other countries. If we want to be a party of the Constitution and of US Laws, then we need to do just that, not be a party of the Constitution and US Laws plus what other countries are doing.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

and Article 5 of the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the U.N., which the U.S. is bound by as long as it is a member.....

Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.


Kennedy was interpreting "cruel and unusual" in the context of world opinion as expressed in this U.N. declaration, therefore it is highly appropriate to cite how other countries interpret this provision through their laws.

That's exactly what I've said. My problem is when they quote Laws of which the US has never signed on in treaty to justify their decision. That was an "understood" when I wrote what I wrote. I don't have time to go into detail on every post.

The Court has also concluded that no law supercedes Constitutional Law when the two are in conflict. Again, I don't have time to look all these things up because I'm at work.

There are two things that bother me about the so-called Constitutional Restoration Act of 2005. First:

Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.

This may be running afoul of the non-establishment clause of the First Amendment. Personally, I'm not offended by the words "under God" in the pledge of allegiance or "In God We Trust" on our coins, but I would be very uncomfortable with a legal opinion based on the judge's interpretation of Scripture. Under this clause, could such a decision be appealed?

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

This could possibly run afoul of the Supreme Law of the Land clause of Article 6 of the main body of the constitution. The Right may not like international law, but the fact is that the US is party to quite a bit of it, including treaties that prohibit the use of torture (including through third parties in the practice the Bushies call "extraordinary rendition") and unprovoked wars of aggression. Therefore, international law is a valid source of law to be applied.

Also, one would not want to apply the standards of the eighteenth century to Constitutional interpretation. For instance, when a judge is called on to determine what standards constitute "cruel and unusual punishment" under the Eighth Amendment, he should apply contemporary standards. In reaching a determination of exactly what that might be, the judge may want to examine what other civilized nations determine about the practice at hand. This, of course, should be considered along with standards that are uniquely American, and those should be given more weight. Were I a judge using that method, I would uphold the use of capital punishment in any broad question about it; it should be noted that I am personally opposed to the death penalty and that among industrial democracies the US is virtually alone in this practice.

in other countries. It is in our constitution. Until we amend the constitution to take it out, they can pass all of the laws they want to and they will get struck down (Assuming the Scotus isn't made up of Fat Tony clones).

meaning today? That's just nuts and of course there is a world wide understanding of "cruel and unusual" that we need to pay attention to. Why do we participate in Geneva Conventions if we don't believe that?

A teacher once said the "as long as laywers make laws", we'll have a country that stuck in piles of paperwork and parsing of language...the essence being that laws and politics are one in the same and to try to confuse the two is wrong. Politicians write laws that, in theory, are for the common good that the judges enforce or interpret...and it was politicians who wrote the Constitution...and any change in laws is almost always rooted in politics.

Thus this red herring the Repugnicans use of how the judiciary is being politicized is typical bogus bullshit. Of course judges will get more "active" when a law tests the constitution in such blatant manners as many of the laws and proposals these morons bring and fly in the face of both common sense and common law.

Breyer's comment that "at least there aren't troops in the streets" is a sad commentary of where our political and legal system has gone. It's more an omnious warning than something to be proud of. Many on our side don't give a shit enough to take to the streets...they're either too coward by peer pressure and media, blissfully ignorant as the world crumbles around them or just couldn't be bothered. Meanwhile the right wing is circling their wagons and trying to ARE getting their people out...and don't think they won't take to the streets if the rhetoric, such as Big Tony Scalia and DeLay's continue to be aped by the corporate media.