Shock Study: High Schoolers, Collegians Drink To Get Buzzed, Then Hook Up | Main | The GOP Can Win -- If It Can Turn Out Like It's 2004
October 23, 2006

Scalia: "Judicial Independence" Not A Virtue When Courts Become Political Policymakers

Does anyone press for untrammeled executive independence -- freedom from interference by other branches or the public, via voting?

Or for unrestricted legislative indepenence?

Of course not. And if the courts continue transforming into nothing more than a shadow legislature, why should they continue to have license and freedom from public opinion that would be considered dangerously undemocratic were the true political branches to enjoy them?

Scalia, during a panel Saturday on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

He added, "The more your courts become policymakers, the less sense it makes to have them entirely independent."

He continues:

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court could have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,' " Scalia said. "It could have said the same thing about suicide, it could have said the same thing about . . . all the social issues the courts are now taking."

Scalia said that in the past, courts did not decide social issues. "It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

And finally:

Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."

Judges have lost their ability to distinguish from what is permissible, but in their opinion ill-advised or not preferable, from what is truly impermissible under the Constitution. Many of them feel entirely unshackled from previous notions judicial self-restraint, and simply vote on matters precisely as they would if they were a legislator.

With one big difference -- a legislator's opinion can be overturned by the legislature. When judges claim this or that is "unconstituitonal," it cannot be overturned by anone at all, except by the very difficult amendment process.

Why should it be that it takes the people and their elected represenatives years and millions of votes to enact their constitutional preferences, but five (or even two) judges can impose their political prefences at their whim?



digg this
posted by Ace at 07:52 PM

| Access Comments




Recent Comments
NaCly Dog[/i]: "Aussie! It's a good day when you pop in. ..."

NaCly Dog[/i]: "Good morning! Let's smile and be happy and str ..."

freaked: "We also gave you the nice looking Hemsworth brothe ..."

All Hail Eris, She-Wolf of the 'Ettes 'Ettes: "We get lollies and funny masks from you lot. . Po ..."

Aussie: "130 Scogg dog We also gave you the nice looking ..."

rammajamma: "I sound like a get off my lawn type but the adult ..."

FireHorse: "Wow. Burns really doesn't do much research, does h ..."

Tonypete: "Morning Horde. Middle son recently watched K Burns ..."

vivi: "I'm gonna send Kevink Williamson a cheap pearl nec ..."

Vic We Have No Party: "142 Vic, According to Apple News NOAA predicts w ..."

FireHorse: "Jello Mold Posted by: Misanthropic Humanitarian ..."

Carol: "Vic, According to Apple News NOAA predicts warmer ..."

Recent Entries
Search


MuNuvians
Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
News/Chat
Archives
Powered by
Movable Type 2.64