I find this very remarkable about American legal system. The supreme court could have technically showed some bleeding heart by not showing judicial restraint. Instead they just did their job. Americans must thank this judicial culture.
The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.
I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one.
Case law is just as much part of the law as statutes are.
This is the fundamental difference between common law systems and civil law systems.
https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
It is, in fact, a self-replicating unit of behavior.
(It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices.
District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic.
When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency.
The courts can also overrule itself in a future court case.
(The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all.
It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
Currently it is the status quo that is choking the news, which is not what I propose...
I don't read snark in your comment btw... I value your contribution
It's like alphabetization, typically after introduction of one person one vote, people become alphabetic, because by the point the populace has made it clear elitism on this facet (voting) is over, the status quo has every incentive to at least educate the populace in reading and writing...
Similarily, I expect moves toward direct democracy (by popular force) to change the behaviour of the elites and the status quo such that "the brutes who will now unavoidably rule us, should at least enjoy a higher level of education with regards to law and so on", and asking questions about law, finding answers, navigating the law, ... will become standard course curricula for the bulk of the populace in high school...
They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)
This mismatch results in some of this derisive language in the U.S.
Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.
Anyone can become President, and anyone can become a lawmaker.
It takes a lifetime of respect to earn a seat on the Supreme Court bench.
No, it just takes the support of the President and a sufficient number of Senators. Of which, by your own argument, anyone can become either; there is either more of a filter than you’d like to pretend on the political branches, or less than you’d like to pretend on the judiciary.
> No, it just takes the support of the President and a sufficient number of Senators.
You're kinda both right. The legal mechanism says that "a lifetime of respect" isn't necessary, but the norms that have evolved around its use say otherwise.
Recent history demonstrates (in the extreme) that norms aren't inviolable, but I think the ones around the competency of Supreme Court confirmees is stronger than most.
In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.
> Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
Did you actually read this? Have you read any parts of the constitution?
Federal powers are constitutionally enumerated, and those which are not are reserved for the states.
The premise of this discussion you've quoted here -- that the feds have the duty to centralize command and control authority over modest home production of plants for one's own consumption -- is obviously not the intent of the constitution, nor is it remotely American, nor remotely consistent with liberty.
The current legal definition seems to make the assumption that when the founders sat around writing the constitution, one of them looked up and asked for a nice punchy way to say "the complete domain of reality from the ground to the infinite reaches of the heavens above" and the reply was "oh, just say interstate commerce."
umm.. not familiar with this case, but:
from a federal position there is no such thing as legal marijuana, and from a constitutional position federal law trumps state law -
which is not to say i disagree about the sheer human folly of regulating the existence of plants via legislation.
The case itself wasn't about whether federal law trumps state law, though. It was about whether the federal law in question is constitutional in the first place - i.e. that the federal government has authority granted to it by the Constitution to prohibit a person growing marijuana plants for their own private consumption (i.e. not for sale, and especially not for sale across state lines, which would then obviously be "interstate commerce"). The plaintiff was arguing that since it's personal use and not interstate commerce, it's out of scope of the federal law. The reason why state law was relevant is to show the exact nature of harm suffered - if not for federal law, the plaintiff would have access to medical marijuana to alleviate his pain.
SCOTUS upheld an earlier decision from Wickard v. Filburn, which basically states that any production and consumption is "interstate commerce", because it affects market prices - if you grow something for your own use, you're not buying that something on the market, the reasoning went. I suggest reading about both decisions, just to see how ridiculous some of our legal reasoning is. And then keep in mind that those decisions are the only thing that makes many federal laws constitutional - it's not just drug prohibitions, but e.g. the Civil Rights Acts.
So both the left and the right have a stake in maintaining this interpretation - both want to be have broad regulatory authority on the federal level, just for different reasons. It doesn't make it any less flawed or ridiculous, but I wouldn't consider it an example of partisan court bias.
but it seems like there are 2/3 threads being comingled in the case:
a) illegality of marijuana itself b) interstate commerce-related issues pertaining to private growth
the 'b' parts you mention definately seem like flawed, unconstitutional reasoning (e.g. expanding the definition of commercial and therefore regulated to include things that actually arent)
as for 'a' - "And when state legalizes it, all that means is that they're repealing state laws making it illegal."
this can't be true true - otherwise there would be no regulation/taxes on dispensaries, etc. in legalization states, which there certainly is..
so it's not like there is a federal law and a 'blank' at the state.. there are contradicting state laws treating it as legal, and federal ones which say it is illegal..
Liberal judge == living constitution
The "conservative" judges votes align extremely well with each other and with the wishes of the political party that nominated them -- which is itself frequently not "conservative" in the sense of "conserving" something. In both cases, the claim to "conservatism" strikes me as having a lot more to do with group identity than any consistent ideology or approach.
Digging deep I realize that this is because most of them will retire at 60 after which they either seek lucrative jobs from their political masters or they want to appear on TV debates as "experts". They have even reserved a lot of jobs for their own kind post-retirement. A number of institutions in India can only have "retired judge" as their chief.
Even though there are strong arguments why judges in USA too should have term limits or retirement age, I think there are these issues in our blindspot that need attention too.
On the flip side, the higher courts of our judiciary do have eminent jurists, who are respected internationally. India is considered to have the most powerful judicary in the democratic world. And in my opinion, they have used this power judiciously to make more far-reaching changes to empower our democracy than abused it.
I do have criticisms too (for e.g., I don't like the idea of judges appointing judges as it upsets the delicate balance of power between the executive and the judiciary), but I recognize that despite their shortcomings they do a pretty decent job - in fact much better than most judiciaries of the developed democratic world when it comes to protecting the rights of indian citizens.
The masses are bought in and ignore it
Not one of the judges on the SC questions the correctness of the process
They just regurgitate the things they’ve been taught and studied
There is no more outside the box consideration of the system here than there is in India
And this forum is just as emotionally blind to it as all the others
They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...
They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
Not the correctness of the US judiciary system itself
Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary
We got James Madison’s version of government, who described the Senate as a legislative body to protect the rich minority from the poor majority. Thus the justice system evolved over time only assessing laws and building its existence on questions of property rights and ownership.
Not saying it’s scandalous or wrong but it’s only concerned with internal consistency, like India.
Look at how the GOP is largely pushing a platform that’s hundreds of years old, with an outcome that resembles the way things were before the New Deal
It’s just old guys advocating for their personal feelings. Exactly what the person from India said :shrug:
> They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
> Not the correctness of the US judiciary system itself
It's literally their job to do work within the system. The SCotUS is explicitly restricted to interpreting the laws that already exist and were passed by existing legislatures. If you want massive, sweeping changes in the structure and nature of a law, you need to go to the legislature or otherwise pick up rifle and start a revolution. It is not the job of SCotUS to create new law. That's why they get so much flack for "legislating from the bench" when they make sweeping decisions. They're not supposed to do that, and they typically only do when making rulings surrounding the Constitution itself and it's Amendments.
Thomas Sowell and Walter Williams both give examples of poker. Imagine a standard Poker game where everyone knows the rule, some win some lose and yet there are no fights. Change the Poker game rules such that the dealer can change the rules at his whim and we will have fights (even though the dealer might not actually affect anyone's earnings).
SCOTUS not going out of their way is good for society.
And that’s exactly what we got. I urge you to look into what the legislative branch does and look into constitutional amendments. The system changes all of the time.
Based on your description of the GOP, you sound upset that the country isn’t more socialist. That’s hardly related to the representatives having the ability to change laws.
>Then why do the laws not reflect the wishes of the public?
This isn’t a direct democracy. The law reflects the super majority of the representatives/senators or the majority of the representatives/senators and the president.
The entire purpose of that is to prevent small majorities from steamrolling in laws. 60% for legalization or whatever topic you want isn’t enough to make a federal law changes if the majority isn’t spread around all of the states as well.
Obama didn’t even want gay marriage when he went into office. People elected him again anyway. I think most of your confusion comes from the fact that you don’t understand representative democracies.
And then even on top of that, the majority leader won't allow a vote unless he thinks the president will support it.
So there are multiple levels something has to go through before it can even get a vote.
Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.
I'll not argue as to the correctness or morality of such a requirement.
I understand. It's just something that is frustrating. Having two classes of citizenship is something that affects many parts of life, especially if you decide on a career doing anything that requires a security clearance.
Ask anyone "convicted" of a felony. "Accused" of a mental disorder.
I put the scare quotes because most convictions are plea bargains that the accused are bullied into by prosecutors and police stacking and inflating charges and the overall lack of competent and affordable legal representation.
Laws are being passed now that permit the suspension of constitutional rights without due process if you are accused of or ever seek help for many mental disorders.
Sensationalistic fear of the 'boogeyman' has destroyed many of our political processes.
There's a clause that explicitly bans religious tests for federal public office[1], and a landmark SCOTUS case clarified that state governments cannot do this either[2].
No, in addition to the clause which directly prohibits religious tests, there is no clause which does anything like that; the required oath or affirmation is:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
No supreme being required or even directly relevant. You may be confusing the Presidency with Alcoholics Anonymous, which requires acknowledging a “higher power”.
I do that all the time.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s it.
“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.
https://en.wikipedia.org/wiki/Oath_of_office_of_the_Presiden...
Oaths of office for other federal positions do contain the phrase "so help me God," but so far as I know there has never been a problem omitting it; I had several friends in Federal service do so.
Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.
Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.
And apparently, neither is lying during your sworn testimony to Congress.
Hundreds of US law professors disagree with you about that respect.
https://www.theguardian.com/us-news/2018/oct/02/brett-kavana...
No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.
If that were true, more justices would ascend to the court quite close to their deaths. In reality, it's maybe half a life, less if you subtract youth.
1: https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...
Few positions are more important, and fewer still require a higher standard of morality than a supreme court position. Why settle for less than a spotless record? The person should be beyond reproach, so much so that an invalid allegation could be easily dismissed(during the confirmation, or any time afterwards).
You are placing someone in a position where they are able to influence lives of countless people, with repercussions that can span generations.
How much a candidate raises has been correlated to ability to win.
That eliminates anyone that can’t raise money.
And Kavanaugh’s nomination casts doubt on the third statement. You can be a vile POS, but become a SCOTUS judge so long as you’re networked with the right people.
Key word being correlated. Winners raise more money in large part because people donate to candidates they think will win. So your third statement is technically true, but in a very uninteresting way that you probably didn't intend.
The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance.
The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied.
Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court.
But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided.
In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.
The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."
However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].)
So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts.
For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS.
There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3].
[0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-...
I would add some from libertarian or socially-liberal inclinations have criticized SCOTUS as becoming tyrannical in a sense that some socia policy was constitutionally-intended to be "experiments" by the states--something SDOC is championed.
I think a good example of this is the political economy of healthcare, which in my opinion should be handled by the states.
The SCOTUS has, for some time now, been very good at doing the following:
- waiting until there is a "circuit split"
(meaning lower courts deciding the issue
differently) on some kind of controversy
before hearing appeals
- then making the narrowest possible ruling
(emphasis on possible),
- thus often leaving some issues undecided so
that lower courts may develop jurisprudence
on the matter further before the SCOTUS need
clarify,
- which then allows the SCOTUS room to maneuver
if they make bad decisions (the SCOTUS does
not like to overrule earlier decisions,
something they call "stare decisis", meaning
what is decided is decided),
- and they do this by remanding to lower courts
to decide things the SCOTUS left undecided.
As to oversight, yes there is, but it goes un-exercised now for a long time. Federal judges are appointed for life, but they can be left without a court or without a jurisdiction, the various courts' jurisdictions (including the SCOTUS'!) can be narrowed statutorily, court sizes can be changed -- all of this by simple majorities of both houses of Congress and Presidential approval (or veto override). There's also two ways to amend the Constitution to change SCOTUS decisions. But none of these things have been attempted in decades. The last time there was an attempt to use statutory avenues was in the 30s, when FDR tried to pack the SCOTUS, and the Senate killed the project. Before that we'd have to go back to the income tax amendment (the 16th), and before the Reconstruction Amendments (13th, 14th, and 15th).
The most notable case I'm aware of when Congress did away with courts for political reasons, was way back when Thomas Jefferson was President. Congress then closed about half the federal district courts and left as many judges court-less. Congress has changed the size of the SCOTUS, including shrinking it, from time to time, though I think all of that was in the 18th and 19th centuries, and never did they pack the court -- it was always changes of +-1 or +-2.
There's always a risk of court packing. It seems strange that the Constitution allows it by simple majority -- it feels like a bug.
A number of politicians have threatened to pack the court the first chance they get. Given our rather nowadays-frequent wave elections, it could very well happen. The filibuster in the Senate will be no protection for the minority in the Senate the day it comes to packing the court anymore than the filibuster stands for nominations to the court (it no longer does). But it's also not guaranteed to happen. It will be very costly to whichever party does it, and since we've had so many wave elections in recent decades, any court packing scheme simply might not last.