Samuel Alito

[Rob P.]

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

INCORRECT! Article III section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..."

Thus, it is not I who is confused on this issue. Especially when you quote the same Constitutional article and section but either missed or ignored this part.

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

So? You just said that the court has jurisdiction in equity. Equity reaches this far and doesn't NEED a basis in law. Equity has the power to stand on it's own 2 feet and the courts have the mandate to use that power. If that's the case, then the courts don't need a legal basis to decide cases as long as there is an equitable basis under which they can make decisions.

And who was it again who said that that he evaluated decisions on whether the court followed a sound, reasoned judicial process, firmly based on interpreting the law? If that's the case, then how do you "agree with the justness" of the Li decision? And how do you then justify the admission that the SCOTUS has the power to make equitable rulings?

And would you then say that 99% of the entire country is wrong because Li was "wrongly decided"? Afterall, once Li was handed down, the country followed suit and changed it's laws.

I think it much more likely that Li was decided in equity to prevent a miscarriage of justice. The country's lawmakers stood up and took notice and then changed their laws because society had progressed beyond the ability of the previous laws to keep the peace and be fair. That's not the court "making law from the bench". It's the court using it's powers as it should. The fact that the legislature then decides to either act and embrace the new ideal or deny it with prophylactic legislation means that the system is working as it should.

And you still seem to think it's one or the other. It's not, it's both - equal and separate.

 

[Rob P.]

Antipitas, Great post!

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)

I'm assuming (I know, I know) that you mean that Marbury usurped legislative power and transferred it to the judicial branch. However, isn't one of the functions of the judicial branch to act as a brake on Congress? If SCOTUS doesn't have the power to say what the Constitution means, then Congress is the one that has that power and dividing the gov't into 3 branches is meaningless.

Thus, SCOTUS must have some sort of power to be able to limit Congress and restrict congressional overreaching. Otherwise Congress has unlimited power over everything including States rights, personal liberties, and cannot be checked except by a revolution of the people. Congress could even interpret the Constitution as giving Congress the power to create and dissolve the legislative and judicial branches. And who could say different? Not the courts, since they would have no power to say what the Constitution means.

KELO is the result of legislative failures as well as the failure of SCOTUS to fully use it's powers. KELO used precedent to come to the conclusion that eminent domain can be so loosely described as to include new tax revenue sources. And you'll notice that no state so far has actually created legislation to block the KELO decision (although some are working on it but are being blockaded by big money and the patsies it buys).

Had SCOTUS used it's equity powers (as it should have) the decision in KELO would have been the opposite of that reached. Justify that with the desire to only see precedent as the controlling factor. Justify that with the proposition that SCOTUS and the courts in general shouldn't use their equity power and rely only on "law" as the basis for the decision.

What you get is KELO all the time, every time.

 

[gc70]

Rob P.

I participate in debates on this and other forums to share my thoughts and to learn from others who share their thoughts. Your selective reading (since I am polite enough to not accuse you of comprehension problems) does not contribute to a productive exchange of ideas. You may think taking parts of a discussion out of context to produce a self-proclaimed "gotcha" is cute, but it is not a sign of thoughtful, reasoned, adult debate.

You will have to continue this thread without me since I have infinitely better things to do with my time.

 

[Jeeper]

I just skimmed most of this but I think you guys are missing a key point.

In England there were separate courts of law and courts of equity. They handled different things. The constitution was made to ensure that the court in the US had power over both. Law and equity meant different things at the time then than they do now in regards to legal proceedings.

 

[Rob P.]

GC, I'm sorry you feel that somehow you've been singled out in some manner. I assure you that I intended no such result.

I engage in discussions like this because it helps to clarify MY OWN perceptions and beliefs since I have to research for facts to support my expressed opinions. And when holes are discovered, I mend them even if that takes admitting I was wrong. Which has been known to happen from time to time.

If that offended you, I am sorry.

Jeepers, the problem with the current view on law & equity is that no one really understands equity. Law is easy - just blindly follow along the precedent set by someone else, under different circumstances, with different people and issues and try to apply it to the current problem. Sometimes it works, sometimes it doesn't but it sure is easy.

Equity needs a thinker to look at the problem and ask; is there a solution here which will benefit the parties and general public & prevent a miscarriage of justice? If so, then equity should be the course taken. If not, then stare decisis is used. In some jurisdictions, precedent comes first then equity gets its chance. In those areas, the questions should be; what has been said on this before, & did it work out fairly for everyone.

To return this to the proper track, Alito doesn't seem to be someone who thinks like that. Yeah, he's great at precedent. Look at his decisions and see how often he followed previous decisions and got it wrong because the result was unjust or confusing. He doesn't use his equity powers at all (or only very rarely) and that's one of the problems.

Combine that with his political windsock appearance and you get someone who just doesn't seem to measure up to the standard needed for SCOTUS.

 

[publius42]

Speaking of excellent dissents and interstate commerce and firearms, I can't believe no one has brought up this Alito dissent in US v Rybar:

Was United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

...

In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market. This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything.

...

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? [Footnote 4] Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? [Footnote 5] If there are distinctions of constitutional dimension here, they are too subtle for me to grasp.