Tuesday, October 11, 2005
Supreme Justice
Rather than discussing any one candidate, I will simply state what I expect of a Supreme Court Justice. Most people would either not agree, being results-driven, or would claim to agree until the results they expect are not achieved.
A Justice looks first and foremost at the United States Constitution for guidance. This should come before any amount of precedent. If a case could be decided one way based on precedent, yet clearly another way based on clear reading of the Constitution, there is no question precedent should be ignored and is an apparently erroneous decision by an earlier Court or session.
A Justice who does not practice and rule on this basis is simply not acceptable on the Court. Period.
If the result of a Court decision is sufficiently unpopular, there is a way around it. If there aren’t Constitutional issues, simple legislation is the solution. If a new law can’t do it without Constitutional issues, it’s time to introduce an Amendment. If the Amendment fails, it’s not what the states and their constituents actually want, no matter how smart and right the true believers hold themselves to be.
Nothing supercedes the Constitution, and a Justice should never rely on foreign law, precedent, or norms, nor those of any particular religion or interest group.
A Justice no doubt benefits from being a lawyer, or from having been a judge, but no such requirement exists in the Constitution or in practice. At the level of matters to be decided by the Supreme Court, being a reasonably intelligent citizen with a grasp of the Constitution, founding principles, and federalism is key. Not to mention a willingness to set personal preferences and prejudices aside that might conflict with an accurate finding.
Precedent should never be used to twist the result to be what you want, rather than what is correct.
The result you want is completely irrelevant and should be ignored.
Kelo was a wrong decision, to the point of malfeasance, because the outcome was unconstitutional. This means at least five of the Justices deciding that case are unqualified to hold their position. All you have to do to see the absurdity of Kelo is to imagine an Amendment clarifying that public use means public use.
Raich was a wrong decision. The response given by Roberts in his confirmation hearings, regarding scope of the commerce clause, is incorrect. His first case affirmed his belief that the commerce clause grants almost absolute power to regulate anything. Roberts is not qualified to be a Supreme Court Justice.
Roe was a reasonable outcome from a wrong decision. The correct decision would keep it up to the states. A litmus test on the topic of Roe is pathetic, because “overturning” the decision would not magically end abortion, but would hand the decision what to do in each state back to the respective states, where it belongs. Again, the place to correct something sufficient numbers of people disagree with is through law or, if necessary, Constitutional Amendment. A minority opinion is still a minority opinion, no matter how vocal, shrill, or perverse in tactics.
Sadly, we are unlikely to get qualified Justices, except as rare anomalies sneaking past the hazing ritual gamut sometimes known as the selection and confirmation process.