West Law Report

Debate on role of judiciary

Posted in US Supreme Court by mrkooenglish on May 14, 2008

Ruth Marcus discusses “when should judges intervene, and when should they abstain?” about constitutional issues, and “these are important matters for general election debate. Instead, McCain serves up red herrings — or, more precisely, red meat — for his still-skeptical base.”

In its first 200 years, the Supreme Court struck down fewer than 130 acts of Congress; in the past 13 years, it has overturned more than 30, including a piece of McCain’s signature campaign-finance law. This behavior is hardly the “humility” McCain argues should be restored to federal courts.

Last year, the court told school districts that they could not adopt voluntary integration plans that use race as a factor in assigning students. Talk about legislating from the bench. I don’t recall McCain complaining then that the court was intruding “on policy questions that should be decided democratically.”

But McCain has problem with it

And, notwithstanding Justice Antonin Scalia’s recent admonition to “get over it,” the court’s intervention in the 2000 Florida recount was the ultimate in judicial aggrandizement. To quote McCain, “A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.”

McCain’s bill of particulars against activist judges was particularly unimpressive. He assailed one justice for stating “that he was basing a conclusion on ‘my own experience.’ ” This was John Paul Stevens this year questioning the constitutionality of the death penalty — and then, respecting the importance of precedent, voting with the majority to uphold lethal injection.

McCain derided Anthony Kennedy’s 2005 opinion invalidating the death penalty for juveniles because it invoked international law (although it wasn’t the basis for the ruling) and relied on gauzy tests such as “evolving standards of decency,” the court’s touchstone in capital cases.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: