Samuel Alito

I would like to spike a copy of the constitution to the forhead of every judge. Then explain to them that this document doesn't need interpeting. What needs interpted is every law passed by congress to see if it has any basis in the constitlution.
 
heheheh.... Kaboom, I really, truly wish that were true.
In a perfect world, everybody would be on the same page regarding the meaning of the constitution.
But get a liberal and a conservative in the same room and ask them, and it becomes depressingly apparent that they aren't.
Go ahead and try it sometime. I recommend lexan to keep them separated.
Q#1: What does 'freedom of religion' mean?
Q#2: What is a 'well-regulated militia'?
And if they haven't killed each other yet,
Q#3: What are the 'other (rights) retained by the people'?
 
I like his stance on the 2nd Amendment. I don't like his stance on the rest of 'em.
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When did he ever give a stance on that. The machine gun case had nothing to do with the 2nd.

The constitution does need interpreting. What does "establishment thereof" mean for religion?
 
No the constitution doesn't need interpeting. Establishment therof simply means that the government shall not establish religeon, period. Just like lthe 2nd. Several people need "shall not be infringed" crammed down their throats, jerked out of their rectums and beat severely with it.
 
Kaboom,
No the constitution doesn't need interpeting.
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Yeah it does. It needs interpreting into the context with which it was framed. This is where all the 'founding fathers' arguments come into play. They know what they meant when they wrote it. These days dishonest people will reinterpret it into what they'd like it to mean in order to support their own ends.
So a justice must accept the constitution as written and strike down any law that contradicts it, but in order to do so s/he must first interpret what it means.
 
I evaluate SCOTUS decisions on whether the court followed a sound, reasoned judicial process, firmly based on interpreting the law is my primary interest. All I want are nine Justices who will honestly interpret the law
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I REALLY wish people would take the time to read the stuff they propose to talk about...

The constitution is what creates the SCOTUS. In the mandate for the creation, the constitution requires that SCOTUS make decisions based in law and equity.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...
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THAT MEANS that decisions CANNOT be based solely on the interpretation of the "law". IF you select a judge who ONLY makes decisions based on the law aspect then you picked a poor candidate who only does half his job and commits malfeasance as to the other half.

OR, do you only want candidates who make decisions that support your point of view because your point of view doesn't include equitable results?

Equity means the greatest good for the greatest number of people. We include equity in the legal process because rules were meant to serve mankind - man was NEVER meant to serve the rules. Under equitable principles, the rules are required to bend so that man can safely and honestly advance society and civilization for everyone.

OTOH, if man serves the rules, then you do not need equity. Man would be required to stay within the rules or be punished. Never to reach or strive to better himself, and certainly never to innovate. I could not live in such a world. Nor, I suspect, could most others. Not even those who propose such an ideal.

You appear to evaluate SCOTUS decisions by how well you like the results or how 'good' the results were. It would be silly to argue with you over personal perceptions of the results of court decisions.
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Why would someone say something like this? Good decisions are based on sound thinking and analysis which includes all relevant issues. Good results prove that the decisions were properly made. How could one not desire and agree with that?

Worse, how could anyone not agree with that? Would you instead prefer that the results be bad no matter how sound the decision and rationale? Or how about discarding the idea of the results totally & just stop at the decision part. Who cares if Separate but equal is unjust - the rationale was sound and interpreted the law correctly as it was written at the time and that's all SCOTUS needed to do. Same with child labor laws (which were a total PITA for congress to enact), sweatshop working conditions, and other laws which have stood the test by SCOTUS and which have improved society because they were the right thing to do.

Not because the law said so, but because the results were worth it in spite of what the law said or didn't say. Had SCOTUS just made their decisions based on the law and then stopped at that point, NONE of those things would have happened and America would be an awful place today.

I don't think those decisions were good because I personally like the results (although I do). I think those desisons were good because the results were greater than the decision which created them. Whatever thought process which lead to that was the right one IMO.
 
Not because the law said so, but because the results were worth it in spite of what the law said or didn't say. Had SCOTUS just made their decisions based on the law and then stopped at that point, NONE of those things would have happened and America would be an awful place today.
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That sums up one side of the argument - the ends justify the means.

Good decisions are based on sound thinking and analysis which includes all relevant issues. Good results prove that the decisions were properly made. How could one not desire and agree with that?
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"Good results" only prove that you like the results.

The constitution is what creates the SCOTUS. In the mandate for the creation, the constitution requires that SCOTUS make decisions based in law and equity.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...
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THAT MEANS that decisions CANNOT be based solely on the interpretation of the "law". IF you select a judge who ONLY makes decisions based on the law aspect then you picked a poor candidate who only does half his job and commits malfeasance as to the other half.
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"In law and equity" refers to different types of cases.

Distinction between law and equity
In modern practice, perhaps the most important distinction between law and equity is the remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forebear from acting.
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Another distinction is the unavailability of a jury in equity. Equitable remedies can only be dispensed by a judge as it is a matter of law and not subject to the intervention of the jury as trier of fact. The distinction between "legal" and "equitable" relief is an important aspect of common law systems, including the American legal system. The right of jury trial in civil cases is guaranteed by the Seventh Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity.
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Let's loop back to something directly relevant to TFL - the Second Amendment.

Most folks on TFL view 2A as an individual right to arms. What if SCOTUS heard a case and decided that 2A only applied to the National Guard - and the judges, in their infinite wisdom, reached that decision, not based on the law, but because they thought that too many people were being killed by privately-owned guns. Would that be a "good" decision because it set out to protect people from harm? I don't think so, but YMMV.
 
"Good results" only prove that you like the results.
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What a hokey thing to say. It just shows what a closed mind you have.

Good results are the sum of effort expended in the correct manner and sequence. ASK any physicist, pharmacist, chemist, etc if they believe that good test results are the work of a sloppy mind and testing procedure. I'll bet that they'll say that good test results are usually indicative of proper proceedures, paying attention to detail, and meticulous investigation and planning.

Do you think that a legal decision would be any different? Do you believe that after spending HOURS researching one single issue out of the many in each case, writing, briefing, condensing and rewriting an opinion, one would WANT a "bad" result?

What if SCOTUS heard a case and decided that 2A only applied to the National Guard - and the judges, in their infinite wisdom, reached that decision, not based on the law, but because they thought that too many people were being killed by privately-owned guns. Would that be a "good" decision because it set out to protect people from harm? I don't think so, but YMMV.
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Your "example" has too many flaws in it's premise to be arguable. Mainly, it assumes that the justices decided the hypothetical issue out of personal belief and ignored the controlling law. This is the opposite of your earlier opinion that we ignore equity and base decisions only on legal precedent. Now you argue that equity should/would ignore the legal precedent part.

Get this point - law AND equity. Both, at the same time, working in harmony to achieve a just and thoughtful end result. As mandated by the Constitution. Not "either". Not "or". Both at once. Together.

"In law and equity" refers to different types of cases.
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Don't be silly and make up stuff that sounds like this. In every single case there is one factor that doesn't respond to law and upon which law has no ability to act. It's called the "human factor". In some cases, the human factor is huge. In others it's only there because the parties are human beings. In either event, it MUST BE addressed or the decisions reached are the result of ignoring evidence and relevant factors. That kind of decisionmaking is usually done because the decisionmaker has a predetermined agenda to achieve a predetermined result. Which is bad law, bad precedent and usually ends with bad results.
 
This is an extension of the above post (sort of).

Let me give you an example of law and equity working together to get to a good end result;

In Li v. Yellow Cab Co. a husband and wife were injured when a cab struck their car. At the time of the accident, the law stated that if any possible part of the accident could be attached to the "victim", then the victim could not recover. At all.

That meant that if you stepped off the curb in front of a bus, it was partly your fault and you couldn't sue the bus company for your injury. Because you should have been paying attention.

Getting back to Mr. & Mrs Li....

Mrs. Li's name was on the registration and ownership of the car was half hers. Since some of the fault could be attributed to MR. Li, the cab company argued that Mrs. Li should also be barred from recovering for her injuries since she owned half the car and, presumably, was liable for half the fault of Mr. Li.

Under the law, as it was at the time, this would prevent Mrs. Li from recovering damages to her person and her car even though SHE did nothing wrong (she wasn't driving at the time).

After a long time doing the homework, the court decided that the law was wrong. Mrs. Li would be punished even though she did nothing. Note that she wouldn't just have been prevented from getting her damages recompensed; she would have had to pay money out of her own pocket for being injured due to someone else's actions. To make things even worse, Mrs. Li could have been made to pay the ENTIRE cost of repairing the cab, fixing her car, & any hospital bills. Mr. Li (who was the driver of the family car) could have gotten off scott free in liability as well as monetarily.

Such a decison would be unfair, unjust, and inequitable. So the court determined that fault shouldn't be an all-or-nothing proposition. They created a different system. One in which percentages were used to determine "How much at fault" a peson is/was and damages are awarded based on the percentage of liabilty.

This is the system used today just about everywhere. No "law" did this. This was a result of the courts looking at the law and saying that the old system was bad because it hurt innocent people and protected those who should be punished.

Do you think that this is a "good thing"? I do and most states do since most states now have comparative negligence laws which use the percentage-of-fault system (although some have no-fault systems now). Yet, this was reached via equity and not through legal precedent.

Or - Do you believe that Mrs. Li should have been made to suffer, pay for EVERYTHING, and lose everything just because she was a passenger in a car she owned half of?

Under a decisionmaking process in which equity is ignored, that would positively have been the result. Which is what is being proposed as selection criteria for our next SCOTUS justice.
 
by gc70:
"In law and equity" refers to different types of cases.
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Don't be silly and make up stuff that sounds like this.
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So I "make things up" when I provide a link to a Wikpedia article and quote relevant sections from the article. Maybe facts are disposable if Rob P. doesn't like them.

Your "example" has too many flaws in it's premise to be arguable. Mainly, it assumes that the justices decided the hypothetical issue out of personal belief and ignored the controlling law. This is the opposite of your earlier opinion that we ignore equity and base decisions only on legal precedent. Now you argue that equity should/would ignore the legal precedent part.
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Rob P. failed to recognize that my example was based on his philosophy. Maybe nuances like that escape him.

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Never insult anyone by accident. (Robert A. Heinlein)
 
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If Rob P. spent as much time reading what others say as he does furiously responding to the first thing he see and disagrees with, he would know that I do not reject the exercise of common sense and fairness by judges:
by gc70 (post #20):
... there are always voids in the law that judges have to fill in - hopefully with wisdom and equity.
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But, in my opinion, the law comes first:
by gc70:
But judges should only fill voids in the law, not disregard the law and substitute their own opinions simply because they feel like doing so.
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Rob P. sounds like many liberals, only caring whether judges make decisions with results that he likes. He seems to distrust the ability of government by the people to do the 'right' thing. Instead, he wants 9 unelected individuals to unilaterally decide what is 'good' or the 'right' thing to do - even if it means disregarding the law.

Rob P. does not seem to trust democractic government, but his comments suggest he would be happy with a benign dictator.

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Never insult anyone by accident. (Robert A. Heinlein)
 
And finally, regarding Li v Yellow Cab Co. I will let the words of two Justices of the California Supreme Court speak for me:
from the Dissenting Opinion of CLARK, J. (McCOMB, J. concurring)
  • this action constitutes a gross departure from established judicial rules and role.
  • the majority's decision deviates from settled rules of statutory construction.
  • the majority decision also departs significantly from the recognized limitation upon judicial action - encroaching on the powers constitutionally entrusted to the Legislature.
  • the majority's altering the meaning of section 1714 ... represents no less than amendment by judicial fiat.
  • no basis exists - either in history or in logic - to conclude the Legislature intended to authorize judicial repudiation.
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In short, if a constitutional law needed to be changed, it was the job of the legislature - not the court - to make the change.

Of course, this is a case from California, where the courts, rather than the representatives of the people, have been making law for a long time.
 
GC, your link doesn't say what you think it says. It doesn't say that equity and law means "different cases" for each. Thus, you said something that wasn't supported by your link. It isn't even supported by your own opinion from post #20 which is totally different from your opinion in post #31.

Changing your position? Good. That means you thought about it.

As for your quote from Li: That's a DISSENTING opinion. Which means it ain't the law, ain't the majority agreement, ain't controlling, ain't nothing which can be cited as being the mainstream course to follow. It's a minority view not shared by the rest of the court, the public, the legislature, and just about anyone else you can think of. Except, of course, the person(s) who wrote it and those who cite to it hoping for some equitable opportunity for the court to go along with it in spite of the law being different. Sort of the point I'm making here.

But, for the sake of argument lets discuss the "it being the job of the legislature to make law" issue. Just why would they UNLESS the court points out that the current laws don't work and need changing? There are numerous decisions in which the court has struck down laws that are unconstitutional (See: Patriot Act among others). Those laws were made by legislators and "unmade" by the court. There's no limitation on the court when they exercise this function and they have the ability to "remake" laws to fit within the framework of our Nation/States. That's the function of the court system - checks and balances. "Checks" means that they void laws that are overbroad and beyond the ability of the lawmakers to legislate. "Balances" means that they fashion decisions that sometimes look like they're creating law but in reality what they're doing is their judicial function of equity.

Again, law & equity at the same time. It's when you separate the 2 that you start to run into trouble. For some reason I get the impression that you think that Law trumps equity and if there's a "law" then equity doesn't get to play. That's short sighted IMO and goes against your quote from Li and the proposition you put forward on the basis of it.

The "liberal" labelling is wrong too. On several counts. Stay civil - this ain't a contest and there ain't no "winner" so my personal faults and flaws are irrelvant to the ISSUE of Sam Alito's nominaton and qualifications.

He seems to distrust the ability of government by the people to do the 'right' thing
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I believe I'm in the majority when I say I do not trust my gov't. 99% of American's don't trust the gov't to do ANYTHING right. Which is, of course, the whole purpose of the 2d amendment.

"Hi, we're from the gov't and we're here to help you..."
 
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Share some civility Rob P.; you reap what you sow.

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There are two separate and distinct uses of the words "law" and "equity" that you are mixing together.

When courts hear cases, they consider:
  • matters of law (what does the law say) and
  • matters of equity (what is a fair remedy)
You cited the Constitution as requiring consideration of "law and equity" in legal cases. I disagree. Considering both matters of law and matters of equity is inherent to the judicial process and did not need to be (and is not) addressed in the Constitution.

Historically, different types of cases had different names:
  • Cases in Law (specific legal questions, with jury trails, and monetary remedies)
  • Cases in Equity (general disagreements, without jury trials, and with remedies involving actions)
  • Cases in Admiralty
When the Constitution was written (and even today in Delaware), there were separate Courts of Law and Courts of Equity in which the respective types of cases were tried. The Constitution specifies the jurisdiction of the federal courts.

Constitution, Article III, Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ...to all Cases of admiralty and maritime Jurisdiction...
(modified by Amendment XI.)
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Constitution, Amendment XI - Judicial Limits. Ratified 2/7/1795.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
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Note the use of the word "or" in the 11th Amendment. You can't have a case that deals only with matters of law or only with matters of equity. But the federal courts can have jurisdiction over Cases of Law or Cases of Equity.

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Rob P., our fundamental differences are over which should come first or carry more weight - matters of law (is the plaintiff entitled to relief under the law) or matters of equity (what remedy the plaintiff should receive).

You have championed putting matters of equity over matters of law. That is a sensitive and feeling point of view, but the judicial system in the United States is designed to reach legal decisions before deciding remedies.

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As much as I agree with the justness of the remedy in Li, the court was wrong because it lacked a legal basis for its decision. The court invalidated a constitutional law and stole the right of the legislature to make laws.
 
Rob P said:
That's a DISSENTING opinion. Which means it ain't the law, ain't the majority agreement, ain't controlling, ain't nothing which can be cited as being the mainstream course to follow.
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So, what you are saying is that the Majority can't be wrong (and usually for the very reasons given in dissent)?

I'll grant that the Majority opinion is the controlling opinion. But is it always the correct opinion? I would refer you to both Raich and Kelo, wherein the dissenting opinion (specifically that of Thomas) lists the failure of the Majority to limit Congress to its enumerated powers.

By your own arguments, you are just fine with this expansion of powers.
It's a minority view not shared by the rest of the court, the public, the legislature, and just about anyone else you can think of.
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Really? As regards Kelo, it is patently obvious that almost everyone was outraged by the stance of the Courts Majority opinion. The only people that liked this decision are those developers (and their political hacks) that stood the most to loose had the opinion been for Kelo.

And how about Raich? Care to tell me how much the States liked that decision? As of that opinion, states no longer have control of their own commerce. It's all a federal game now. Oh it was before, to be sure, but now, even the pretense of the states having control over their own borders has been swept away.

Can you look anyone in the eye and tell me that this is what the founders had in mind when they penned the Commerce Clause as an enumerated power? This was blatant usurpation of power. Usurpation that started with Wickard and has been building ever since.

(Which, incidently, is exactly what is wrong with "settled law" and precedent... Again, Justice Thomas has it right.)

Shall we move on to other points of contention? Like striking the part of the BoR that says, "Congress shall make no laws... affecting freedom of speech?" Reread the decision on the BCRA. Does it or does it not, for the first time in US History, allow the Congress to make a law prohibiting the Content of speech and not merely the manner, place or time? The dissenting opinions here, had it right.

Outside of the Court itself and Congress, the only people who liked this decision, were the MSM (the legal exception to this law).

Rob, in the 3 example cases, the Court has crapped upon the Constitution. Yet, there is absolutely no recourse, because as we all know, the Constitution means what those 9 robes say it means (see Marbury v. Madison).

Since those decisions give more power to the Feds, we can be assured that the Congress will not initiate amendments to clarify Congressional powers. It would take a Constitutional Convention of the States to rectify these decisions. And that won't happen, as we all know what happened the last time this was tried. Therefore, there is no practical recourse against this abuse of power.
 
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