Quite a few people seem to have, how shall I say it, highly idealized concepts of the Supreme Court. They are idealized because the concepts don't match the reality.

For all the sound and fury that some of you are expending on HayleAnne for asking the question and how she's proceeded, methinks you're all missing the essence of the questions.

With very few exceptions, nothing gets heard by the Supreme Court unless two Federal Appellate or State Supreme Courts have conflicting rulings. This means that the vaunted objectivity of judges has, for some reason, failed. True objectivity means you get the same answer, every time!

Second, except in very rare instances, things don't end up in the Supreme Court when they are "clear cut" under the law. If they were clear cut, why did two (or more) courts come to differeing judgements? In 1972, the year before Roe v. Wade, the Missouri Supreme Court decided that abortion restrictions were constitutional. This was the same time that Roe v. Wade was making its way through the Federal system. Roe v. Wade, as the majority called it, came down to a decision between the 9th Amendment, and the 10th.

The simple fact is, hard cases are the ones that get to the Supreme Court, one's that for a myriad of reasons are not amenable to "cookie cutter" objective analysis. Which means that these judges are going to be bringing something else to the table when they decide what is and isn't Constitutional.

I think the heart of HayleAnne's question is this: is Catholicism an acceptable "something else" for your choice of Supreme Court Justice?

Everything else about the merits of the case is equal, the justice can either flip a coin or consult his Bible. Which would you prefer? Or are there other sources of wisdom you think he should consult?

What if she consults Das Kapital, Leviathan, The Feminist Manifesto, Silent Spring, Mein Kampf, or Atlas Shrugged? Are secular ideologies that inform our moral perspectives "better"? If so, why?

FWIW, at least with a devout Catholic, you've got a better idea of what you're getting.

hayleyanne your talent for condescension is incredible.

In looking at these two statements. It amazes me how similar your views of people responding to this thread and devout Catholics seem. Under your definitions, neither are doing much in depth or independent thinking.

No, I'm sorry, Hayleyanne, but merely stating your opinion as if it were a fact does not make it so. The burden of proof falls upon you when you make such a expansive statement without any supporting documentation, statistics, or any other material to buttress the statement.

"I am just stating a FACT," would not pass the scrutiny of a high school debate team. It certainly isn't going to fly very high on America's Debate either.

Everyone is entitled to their own opinion, but not their own facts.---Senator Daniel P. Moynihan

Unlike other christian religions, the beliefs of Roman Catholics are defined by the Pope and church teaching through the cathechism. The Pope is considered to be infallible.

One of the links below is to the vatican-- where you can find the papal encyclicals, which are essentially the pope's position on various issues. The papal encyclicals go back more than a century. Roman Catholic doctrine requires a devout Catholic to practice according to these dictates. Many American Catholics may go to church etc but they do not accept some of the positions of the Pope found in the encyclicals. For example, the Church teaches that it is a sin to practice birth control. Clearly, many american catholics are not following this dictate. I am myself, not a devout Catholic, but as I stated, I happen to know many who are.





http://religiousmovements.lib.virginia.edu...atholicism.html

http://www.vatican.va/phome_en.htm

Entspeak wrote:



The hypo raises two issues:

(1) How do we expect a justice to interpret the Constitution. I thought your view was entirely on point: that a judge must interpret it as neutrally as possible. The natural next step would be to ask-- if someone is a devout Catholic -- who adheres to a certain doctrine which is very clear -- can that person discharge his duties as a Justice? If we truly believe that a proper constitutional review is divorced from one's individual moral or religious view, then of course a devout Catholic can sit on the Bench. However, if we believe that judges do not divorce their individual moral and religious beliefs from their constitutional interpretations, then clearly, a devout Catholic ought not to sit on the bench. I chose a devout "Catholic" because they clearly believe that abortion is murder. Will Liberals want to risk putting someone like this on the bench? Doesn't it all boil down to what we really believe a Justice brings to the bench?

(2) If we assume that a Justice cannot divorce his personal beliefs from Constitutional interpretation, or indeed that the living constitution requires a judge to bring more than a textual reading to his jurisprudence, then the hypo raises the issue of what type of philosophy would liberals or conservatives want a Justice to bring to the bench. I would assert that Liberals would want a moral relativist and conservatives would not.

These are the interesting issues I thought the hypo would raise. Perhaps I will try to reframe some of these questions for a new thread-- because the thread, obviously did not go in the direction that I had anticipated.

Given the role of the Supreme Court in the Constitution, one would hope that only the best and the brightest jurists would be confirmed in the position. Unhappily, this has not always been the case; and there is good cause to believe that the current administration will not be seeking outside advice in the matter. Former White House Counsel (now Attorney General) Alberto Gonzales has told the American Bar Association that the President has no need for their advice on judicial appointments.

As to the qualifications posed in the topic: certainly, a proper founding in the law would be expected; however, it would probably be preferable to have a jurist with a more general background and experience. Given the vetting process for confirmation by the Senate, one would think that the nominee would be an Article III judge rather than selected from the more narrow sphere of Article I courts, and so the example, from that perspective, seems somewhat improbable. The focus on the candidate’s devout Catholicism and volunteer work could be viewed in both a religious and civic context, and no doubt would raise some eyebrows by those who would apply a litmus test for judicial appointments.

I think much of the problem here is a generalized concept on the word devout. 1 coming from the absolutism of a catholic and the other coming from us (who I assume are all protestant or at the very least grew up around protestantism).

I think Hayleyanne was assuming because due to her religion it is second nature that we understood what she meant by "devout". She never got over the fact that we werent connecting the dots. She is so used to the concept being catholic that she thought we were dodging the issue. We of course were not and someone accusing us of this kind of ticked us off.

To a protestant or those raised around protestantism "devout" holds an entirely different meaning. You can believe in evolution and not take the bible literally and still be considered "devout".

Devout as I have ever thought of the word means being spirtual and a devotion to god and religion.

I have catholic friends that did the whole mass/communion/confession thing and do lent and easter big and do the ash on the forehead thing. People who were dating for years and refused to live together until they were married (as they said their priest would not marry them if they lived together). Very good people who cried when the pope died. Yet, they had sex before they were married. Then to hear someone say they are not devout offends me as a friend because when I hear that it tells me that you are saying they are not religious and they describe themselves as very religious.

I was unaware that "devout" in a catholic sense excludes any catholic who uses condoms, who masterbates, has a child out of wedlock but includes those who have anal sex and molest children as I guess there is no dogma's or rules specifically against that. By the way that wasnt a shot against catholics just an observation of the supremecy of laws in the catholic chirch if you are to be considered "Devout".

This being said I do not know what a devout catholic even is. I have never met or known a "Devout" catholic then and I know alot of catholics.

In order for me to make a sound judgement on a "devout" catholic I guess I would first have to know all the rules and dogma's and canon laws of the catholic church. Then again if it was made clear that his personal religion and religious practice would have no bearing on how he viewed US law and interpreted a constitution while not inserting his church's law then I would be fine. How he worship's is his own thing.

Just want to clarify that those priests involved in the child abuse scandal are considered by the Church to have committed a grave sin. Here is the Pope's statement on the issue:

http://www.beliefnet.com/story/104/story_10470_1.html

Yeah I did leave that too ambiguous. Im not saying that church condones that at all. I do think though that some in the church were willing to allow it and hide it because it wasn't specifically against any catholic law. I wasn't taking shots at catholics I am positive it happens in every denomination.

After exchanging some PM's with hayleyanne, I have come to understand that when she says "devout", she means orthodox -- and that the Church views orthodoxy as the only type of devotion. I would argue that they tend to let that orthodoxy slide occasionally, but that isn't the topic of this debate so I won't go there. Accepting that Hayleyanne means orthodox when she says devout:

If murder were legal and constitutional in this country, I would expect a devout Catholic to uphold that view. If being a devout Catholic meant that they couldn't do that, then I don't believe that they should be allowed to sit on the bench. If they were compelled by their religious beliefs to apply their moral code over the State's moral code, they would be legislating their religious belief from the bench.

So if the man described in the hypothetical is an orthodox (devout) Catholic, no I don't think he should. The requirements of the job violate the requirements of his faith and there is a serious conflict of interest there.

I would say misunderstanding abound here, from the meaning of devout/orthodox to what Liberals believe about religion as it relates to judicial appointments.

I think the devout/orthodox issue has been resolved, so how about we look at the other misunderstanding.

Liberals don't fear, hate or dislike religion or judges for participating in them. The concern is NOT about religion itself, it's about the JOB. Can this devoutly religious judge do the job and keep his deeply held religious beliefs from seeping into his/her ability to do the JOB. THAT, in my opinion is the REAL concern. Can this person adhere to and uphold laws that are in direct conflict with his/her religious beliefs? We are already seeing situations where religious beliefs ARE interfering with people's ability to function within their job title, the pharmacist refusing to dispense birthcontrol pills springs to mind readily. Personally, if I could not do the job I was hired to do (and knowing full well what those duties entailed) I would NOT take a position and then refuse to do the job or expect accommodation based on my religious beliefs. That would be like an Amish person taking a job as a computer technician and then refusing to do the job because it conflicted with his religious beliefs! So from MY perspective, the real issue regarding judicial appointment is can this devoutly religious person place the position he/she has taken above their faith.

The topic suggest what characteristics one would look for in a jurist, that might include those in the following portrait. (The same attributes would apply to a woman judge.)
. . .

He is a quiet, thoughtful person as opposed to a man of action, being more contemplative by nature as befitting his role in sitting in judgment over others. In this, he is a reluctant arbiter; for he, more than others, is mindful of his limitations, and, in administering justice, as capable of error.

He is reserved and cautious of opinion, keeping his views within the perspective of precedent. He does not rush to judgment, but waits patiently to hear all the evidence, knowing that the truth may take some time to tell.

His is a plodding intelligence - slow, methodical, probing - and what he is lacking in innate knowledge, he makes up with scholarly study. He is a practiced observer, seeing both men’s actions and the motives for them.

He is reticent, even taciturn, but when he does speak it is with the authority of office and no more. He applies the law fairly and evenhandedly, and he pronounces his sentences dispassionately without rancor or censure.

He is of amiable disposition in company within the bounds of decency and decorum; while in private, he tends to solitude and philosophical reflection, content in the company of his own thoughts.

He is least of all judgmental, and would prefer to see the world go to the devil than self-righteously impose his own morality on another man.
. . .

Nemo, you described the following as a desirable characteristic in a judge:




Follow up Qs:

Does that mean he would respect the "morality" of a majority of a state's citizens and refuse to overturn a state constitutional amendment defining marriage as between a man and a woman?

Does that mean he would have voted to uphold the juvenile death penalty in states where it existed?

Would he uphold a federal law requiring pharmacists to dispense any and all medications?

Would he uphold a federal law with a conscience clause allowing pharmacists to refuse to fill a medication if they have a moral objection to it?


.

I agree completely Entspeak. But I will flip the hypo to test the consistency of this view. Assume a state law that clearly made a moral judgment. And you know where I am going with this. Should a judge who is morally opposed to banning gay marriage, uphold a State constitutional amendment limiting marriage to a man and a woman? We are going to have this issue come up soon with the numerous recent state constitutional amendments.






Lin, I will flip the hypo here too, to test consistency. Would you expect a judge who supports the use of contraception to uphold a federal law that allows for a conscience clause exemption for pharmacists who feel morally compromised in dispensing birth control?

State Constitutional Amendments are subject to the limitations of the 14th Amendment of the US Constitution.

A Supreme Court judge's duty in this instance is not to respect the will of the majority, but to question it when the will of the majority appears to violate the 14th Amendment. If an element of a State Constitution violates the 14th Amendment of the US Constitution, it should be overturned even if the moral view represented in the State Amendment is a result of the will of the majority of the state's citizens. This is the "attack of conscience" scenario that I mentioned earlier. This is part of the job for a Supreme Court Justice and his own moral code should not come into play. Is that not consistent?

hayleyanne:

First, thank you for raising such an interesting topic for discussion.

It may come as a surprise, but morals and religious teachings are not the basis of our laws and legal system. See SOCIAL ISSUES Discussion Forum, Principles & Personal Philosophy, "Moral Guidance" Thread, posts 28, 31.

As to your questions on the regulation of marriage and pharmacists, these are issues of state and not federal law under the Tenth Amendment. Whether it is right or wrong to make federal cases out of such issues is problematic, and in any case probably beyond the scope of the original topic. Not to summarily dismiss your questions, but it would be unlikely that the Supreme Court would grant cert. or even likely that such a case would make it that far based on doctrines of federal abstention.

Regarding the Supreme Court's decision in Roper v. Simmons in which the court declared the death penalty for minors as offending the Eighth Amendment prohibition against cruel and unusual punishment, what was interesting was the rather pointed critique of Justice O'Connor on the majority's use of a "moral proportionality analysis" and the "court's independent moral judgment" in deciding the issue; and Justice Scalia's dissent (Joined by Justice Thomas and Chief Justice Renquist) criticizing the adoption of a "national concensus" of "standards of decency" and the importation of the "views of other countries" in formulating its judgment. The decision is surprising because of how the voting aligned politically, and is an example of the effects of imposing moral values onto the law, and making the legal system into courts of popular appeal. In this, what is critical is not where one goes, but, rather, how one arrives at the end.

Entspeak is right: neither the will of the majority (however wise or wrongheaded), nor the judge's own morals should come into play in the judicial process.

It may come as a shock to you, but utilitarianism is an approach to morality, not a rejection of it. If, as you say, the laws are based on utilitarian principles, they are based on a moral code. Jack22 informed you of this in the thread that you reference -- and I have to say I agree. I would suggest that you respond to his assertion there, because we don't need to get into a discussion about utilitarianism here.



On the issue of marriage, State's are limited by the 14th Amendment in how they can regulate marriage. So, yes, marriage is to be regulated by the States -- this is why an Amendment to the US Constitution regarding marriage would be wrong, but the 10th Amendment does not allow for violation of the 14th.

The judge is not respecting the majority's "moral" view. You say that is ok because the judge is simply enforcing the 14th amendment. But I say, reading the 14th amendment to permit gay marriage is the judge imposing his own moral code. The plain language of the 14th amendment says no State shall deny . . . to any person within its jurisdiction equal protection of the laws. On its face the state amendment defines marriage. According to the plain language of the amendment no citizen of that state is denied access to marriage.





No Nemo. These issues can and will be raised in the federal courts as violations of the 1st amendment (free exercise clause for the pharmacist law) and the 14th amendment (due process or equal protection for the gay marriage issue). The Supremes will grant certiorari in the event we have a split in the circuits on these issues.




What does that mean "imposing moral values onto the law". I don't get your point. Scalia was right in his assertion that the Supremes were wrong to substitute their moral judgments about the juvenile death penalty for those of the states.



Agreed that neither should come into play in the judge's interpretation of the law. The relevant question is what the judge brings to the table when he interprets the constitution to determine if the democratically enacted legislation is unconstitutional.

I framed my answer in a particular way so as not to have to defend my position on same-sex marriage in this thread. I am already doing so, quite successfully I might add, in another thread and I feel no need to rehash all that debate in this thread when it has no direct relevance. I stated how I feel a judge should approach the issue of same-sex marriage and that approach is consistent with my views on how a judge should behave. If you are seeking to question my views on same-sex marriage do so in the thread in which we were discussing same-sex marriage. In that thread, you have yet to show that there is a rational basis for violating the Equal Protection Clause when it comes to same-sex couples. The argument you just brought up was also addressed in that thread. I will respond to this portion of your post there.



Hayleyanne,

I'm confused. You asked a question regarding a federal law, not a state law.

What is there to be confused about? The Supremes can review a state constitutional amendment (or statute) as well as a federal law for its constitutionality. What is the problem. See Romer v. Evans (1996) (Colorado amendment barring homosexuals protection against discrimination is struck down by the Supreme Court as unconstitutional). The response to Nemo referenced a state constitutional amendment (gay marriage) and a federal law (pharmacists).

No I wouldn't and I'll tell you why I wouldn't. For one, I don't believe the Federal government should be deciding on such an issue in the first place, aren't decisions like that normally found in state courts or covered under state labor laws? Let's say for the sake of argument that it becomes a Federal issue, would I support it then? NO, not based on the fact that it' surrounds someones faith but because refusal to do the job you have taken could in THIS case could cause REAL, physical harm to the person who is denied contraception. Unless that phamacist is an MD, s/he has no knowledge or authority to dictate or deny medication that is legal in this country and that can be used for purposes OTHER than birthcontrol.

Here's a hypo for you regarding this...A woman comes into a small, rural drug store to refill her birthcontrol script, she's on the pill because pregnancy could cause serious physiscal harm (possibly death) and I know people that fall into this category btw....The pharmacist refuses to fill that script based on his/her religious convictions. That woman can't get to another pharmacy before it closes (miles away and in some parts of the country that is not unusual to have to drive long distances before reaching another town). In turn this woman becomes pregnant and complications insue from that fact. She suffers emotional harm AND physical damage from all this...

THIS is why I'd oppose such set asides in THIS hypo. In allowing such a set aside you could be endangering someones LIFE which I believe put's this hypo in a category of it's own.

Is there a federal law requiring pharmicists to dispense any and all medications? Is there one being proposed? I thought these were state laws that were going to become an issue regarding pharmacists and the 1st Amendment. That's why I'm confused.

entspeak:

I am not shocked at all. Jeremy Bentham was one of the great moralists of his time; however utilitarianism embraces a civic ethics applied to society, its laws and legal system, which is secular and not based on religious doctrine. There is a distinction between morals and ethics, for while there are different moral codes, ethics refers to an applied moral system. It is like the distinction between science and technology: there are different branches of scientific discipline, but technology refers to applied science; and, not to put too fine a point on it, it is a distinction that makes a difference.

The Fourteenth Amendment does not confer power to the federal government to regulate marriage and individual professions (viz. these subjects are not among the powers delegated by the Constitution to the United States, and reserved to the states and the people under the Tenth Amendment), and most of the decisions addressing its provisions have upheld the states' right to regulate marriage and business and professions within its jurisdiction. Of course, there are cases where state action may infringe on rights and protections guaranteed under the Constitution raising Fourteenth Amendment issues (e.g., state discrimination in the issuance of marriage licenses and professional practice); however the underlying basis of regulation of such subjects is a matter of state and not federal law.

hayleyanne:

It was Justice O'Connor's dissent that critized the use of a moral analysis as a justification for the court's decision in Roper v. Simmons. What was curious was that Justices Scalia, Thomas and Renquist, who have been rather vocal in asserting religion and morality in the interpretation of the law, should find themselves on the other side of the fence when the same rationale is used to justify a decision they don't agree with. According to them, apparently, where one ends is more important than the means to get there, which is a rather dubious moral position.

In my question to nemo, I said it was a federal law. I have not heard of any federal law in the works. I think Congress could pass one if it wanted to under the commerce clause-- so I don't think it is an unrealistic question.





Not tracking you here nemo. Scalia was quite consistent in his dissent here with all other positions he takes when it comes to respecting democratically enacted legislation.



First Lin, Congress would certainly have authority to pass such a federal law under the commerce clause-- that aside--

The ultimate question is whether the judge should decide the case in a way that is consistent with your belief as to what is the correct result. Fine. But isn't the judge then substituting his own personal/moral beliefs about what is best? So a judge should be able to substitute his moral belief for that of the legislature in a life or death situation? Who decides what is a life or death situation?

I've seen you reference the Commerce clause on several occassions and in looking at it, I don't see what grounds they'd use to do that. Care to share the reasoning behind that?

It's not about "My belief" Hayleyanne, it's about about health and safety. If you allow an exemption for pharmacists based on religious beliefs in this instance you'd be sanctioning denial (in some instances) of medication that is vital to the health of the individual and possibly endangering their lives. I don't see a court in the land that would side with a pharmacist on this issue, not because of their religious beliefs but because you could be endangering public health and safety. The judge in this case would not be substituting his his moral beliefs about what is best. He'd be upholding people's right to access to legally, prescribed medication. It would be about safety Hayleyanne, not about religion. My personal view on religion is YOUR religious rights stop at the door of infringing on MY rights. This isn't the United States Of Catholicism and in denying people their legally prescribed medication, you're infringing on THEIR rights. If a pharmacist has religious objections to filling birthcontrol prescription than in all honesty, I believe he should be fired. He/she knew going into the profession that birthcontrol was one of the drugs s/he'd be dispensing and if s/he was unwilling to do that job, than s/he should not have taken it in the first place. To me, that just falls under the heading of commonsense. I respect people's right to believe as they will religiously but they do NOT have the right to impose those beliefs on others.

I know it is pretty ridiculous isn't it? Congress has the power to regulate "interstate commerce" under the Constitution. The Court has interpreted this to mean pretty much everything. The remotest link to "commerce" in any sense gives Congress jurisdiction. People used to criticize this broad authority, but have pretty much given up on ever challenging it in any real way. As an example of an early interpretation, here is a link to a discussion of the Court case that upheld Congress' authority under the 1964 civil rights act to regulate motels and ban discrimination in accommodations:


http://www.answers.com/topic/heart-of-atla...v-united-states






I understand that Lin. But the Legislature would have weighed in on this and balanced it and ultimately decided that it is not a life and death situation under the hypo. Maybe they were thinking that people have easy access to prescriptions on the internet. Probably the more likely scenario is that the Legislature would put in some kind of exception for rural areas where there was essentially no access.

In any case-- it is still about a substitution of judgment.



Ok then, let's assume the Legislature puts in an exception for rural areas where there is no other access. They could require the pharmacy to transfer the script to another pharmacy willing to fill it within say, a 10 mile radius. I think this might be the more realistic type of legislation that is enacted. Honestly, I do think that a federal law like this would have to have an exception of some sort for just such a situation, to cover a life or death situation (however unlikely this may be).

I could live with it as long as there were provisions made (aka...transferring within a 10 mile radius) but I'd ask you a question here. If the owner of the pharmacy decides that employing this individual is detrimental to his business, would this federal law protect that employee from dismissal? If so, how would you defend that ruling given that the pharmacists religious beliefs are costing the drug store owner revenue?

Conversely couldn't the Commerce Clause ALSO be used to to force pharmacists to fill these scripts based on discrimination (aka...your religious beliefs are discriminating against those who don't share your faith by denial of services)? Given that it was used to end discrimination against blacks based on race, could it also be used to end discrimination against non religious people by religion?

Good point. I think it would have to-in order to be fair.



Yes, exactly. Arguably, I believe the commerce clause would give Congress that power as well.

Aside from demagogue websites like gop.org and democrats.org, has Gallup or some other respected pollster sampled the nation’s “trust” in the judiciary? In the Schiavo thread you said “Something is going to happen” but Reagan’s revolution in the judiciary is overdue. Especially since Clinton appointed more moderate judges to the bench than Carter and LBJ.

I didn’t ask myself what party Greer registered with. Had the Senate not passed the lawsuit reform bill it probably wouldn’t have dawned on me that federal courts are more conservative that state courts. Or, more conservative when dealing with cases that have an economic impact. You could say that what matters most is people’s perception of reality. I’m more inclined to say the narrow agendas of interest groups shape public perception and I prefer to lay blame where it belongs instead of jumping like another sheep.



I’m part of that ridiculous group. I have this ridiculous idea that a Jewish Justice on the High Court will recuse himself if he feels he needs to should a “male genital mutilation” bill ever be signed into law at the state level and challenged on 1st basis.



I can’t agree with you here. Not about the gay marriage issue itself, but absorbing or casting aside the state’s moral judgment. To absorb a state’s moral judgment would probably mean a different outcome in cases like Loving v. Virginia, and upholding the state judge’s assertion that “Almighty God created the races of White, Black, Yellow, Malay, and Red, and He placed them on separate continents… And but for the interference with His arrangement there would be no cause for such marriages."

That comment is indicative of where Virginians stood on interracial marriage. If a judge must put his morality aside to judge impartially s/he cannot substitute his newfound impartiality with the state’s morality and reach a neutral judgment.



That’s the thing about hindsight. Great, isn’t it? The way it all makes sense to activists in the here and now and those activists give society a kick in the rear. Society grudgingly trudges towards reform, uncertain, until a few or several generations later it picks up the slack and moves right along.

We certainly corrected these issues with a democratic process. The difference between you and I, however, is that I don’t believe any of these problems had to wait for the legislature to stand up to constitutional scrutiny decades later. The moral objectivist or absolutist won’t budge on gay marriage until society reaches a consensus of sorts and reflects this new value in legislation. However, the objectivist/absolutist doesn’t, in my opinion, reflect on the number of times relying on external feedback has led those before him or her to reaching incorrect moral conclusions. In fact they avoid this reflection, preferring to lay the blame squarely on relativists. In doing so they ironically serve as the impetus for redress through the judiciary we see today.

I don't know of any good polls on this, but I would certainly like to see some.
I have been interested in (and disturbed by) judicial activism for quite a while now. It used to be that only lawyers talked about the ever expanding power of the judiciary. Then it seems the politicians got hold of the term and started talking about it. Then the politicians started to actively stall/block judicial nominees—which is the best indication of the over arching power of the judiciary. When I said “something is going to happen” I was really commenting that it seems to me that the general public is for the first time really questioning the power of the judiciary. Men in Black has been a best seller on the New York Times list. Although written by a lawyer, it is definitely geared toward the lay person. Every talk show I tuned into during the weeks of the Schiavo incident, there was vehement talk about the power of the judiciary. Some people try to point up a hypocrisy in the right on the Schiavo incident by saying that they want judicial activists there but not elsewhere. But that view misses, I think, what the general public took from the incident. It was not so much that so many people wanted the courts to be activist. Rather, people were shocked at the arrogance of the federal judiciary. It was an eye opener to see that the federal judiciary refused to permit the lower court opinion in Florida to even be reviewed de novo.



I am not sure what you mean by this.



I still hold to my convictions that the safest approach is for a judge to remain neutral and not substitute his moral judgment for that of the legislature. I also believe that the only true progressive change can come from the legislature. People point to Brown v. Bd of Education as the pinnacle of success in our fight against racial inequality. I don’t accept that. Yes, Brown ordered desegregation. Yes, Brown marked an important condemnation from the highest Court in the land on racial inequality. But Brown is not what ultimately knocked down the racist laws in the South—it was the Civil Rights Act of 1964. And I do not believe that but for Brown there would have been no civil rights movement. I see it as evidence that the only way to effect real societal change is to make your case in the court of public opinion which then leads to getting those changes legislated.

Something more for y'all to think about regarding the qualifications of Supreme Court Justices. I'd like to point out that the justice described in this article is a far cry from the "best and brightest legal minds" that some of you seem to be hankering fer...

"The Jury of the Country"

If Mr. Herman's representation of the origins and intended nature of our Supreme Court is correct, which, having just perused the Massachussetts Constitution, I am inclined to believe, then Mr. Wilson would have no problem whatsoever with our hypothetical justice. Common sense begins with recognizing right and wrong, and for all their failings (some unique to them, most shared with the rest of humanity), devout Catholics have a pretty accurate sense of right and wrong.

Common sense enables us to judge the world and make our most important decisions about up and down, right and wrong, truth and falsehood. It is the enemy of moral relativism and intellectual pretension It is, in short, the enemy of modern jurisprudence.