Category Archives: U.S. Supreme Court

 

January 29th, 2007

Quotes on the Law and Lawyers #6 (Constitutional Construction)

You can’t swing a dead cat these days without hitting a Supreme Court Justice in the media spotlight:

A-List legal blogs are red hot on a new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,. In addition, interviews have come from Chief Justice John Roberts and Justice John Paul Stevens (ABC News) Justice Antonin “Get Over It” Scalia (Iona College), Justices Ginsburg (CBS 60 Minutes), Justice Alito, (Palm Beach Bar Association) and Justice Breyer (Fox News Sunday). Whew.

There is also a PBS special coming up next week.

According to Orin Kerr at The Volokh Conspiracy, “These days it feels like news when Supreme Court Justices aren’t giving on-the-record interviews to reporters.”

All of which leads to constitutional debate since many judges prefer to talk of judicial philosophy instead of individual cases: Some feel the constitution should be interpreted based on the current times and circumstances while others assert that it must be strictly interpreted as written.

This debate being played out now in various media brings up an ancient quote:

Rigorous law is often rigorous injustice.

–Terence (185 B.C – 159 B.C.)
Roman playwright and poet

 

January 25th, 2007

A Response to Justice Scalia on Bush v. Gore

In handling a Bush v. Gore question from the audience at Iona College the other day, Justice Scalia said:

“It’s water over the deck — get over it”

But the suspension of democracy in Florida in 2000 is not something to “get over” any more than other poorly decided Supreme Court decisions such as:

  • Plessy v. Ferguson’s holding that “separate but equal” race discrimination was OK, or the
  • Dred Scot decision holding that slaves could not sue in federal court since no slave or descendant of a slave could be a U.S. citizen, or
  • Korematsu v. United States, holding that U.S. citizens of Japanese ancestry citizens could be summarily relocated to detention camps during WW II based solely on their race.

In fact, Bush v. Gore was worse than all three. For each decision above could be overturned by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have been counted.

Bad judicial decisions are not something to “get over,” but are mistakes to be learned from.