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| Thread: First Amendment decision by the U.S. Supreme Court | |
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Peacemaker
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Supreme Hero
Peacemaker = double entendre
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posted October 13, 2004 05:45 PM |
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First Amendment decision by the U.S. Supreme Court
-- and the mouths of the Founding Fathers themselves...
MR. JUSTICE BLACK delivered the opinion of the Court.
The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.
This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system. These state officials composed the prayer whichthey recommended and published as a part of their "Statement on Moral and Spiritual Training in the Schools," saying:
We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.
Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that "Congress shall make no law respecting an establishment of religion" -- a command which was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution." The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection. We granted certiorari to review this important decision involving rights protected bythe First and Fourteenth Amendments.
We think that, by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious, none of the respondents has denied this, and the trial court expressly so found:
The religious nature of prayer was recognized by Jefferson, and has been concurred in by theological writers, the United States Supreme Court, and State courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed.
The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. . . .
The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax supported Church of England. The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and [ obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs. Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England's governmentally ordained and supported religion.
It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia, where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous "Virginia Bill for Religious Liberty" by which all religious groups were placed on an equal footing so far as the State was concerned. Similar though less far-reaching legislation was being considered and passed in other states.
By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say -- that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.
There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "nondenominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that, only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind -- a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . ." And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.
It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that "More things are wrought by prayer than this world dreams of." It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.
It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others -- that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that, because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:
(I)t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?
The judgment of the Court of Appeals of New York is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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Consis
Honorable
Legendary Hero
Of Ruby
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posted October 13, 2004 07:43 PM |
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Edited By: Consis on 13 Oct 2004
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Good Documentation
This is an excellent piece regarding the original theory as to one of the reasons why our English(Brittish) ancestors decided to make america their new home. Thankyou Peacemaker.(I shall make personal note of this thread for future reference)
Otherwise, I have very little to say on the matter. The state may have as many appeals as it needs to overturn such legislation. I'm quite certain that New Yorkers won't sit on it for too long.
Oh, and someone should tell PrivateHudson that we mean no offense in the delivery of this thread. It's nothing more than a historic reference for our current legislative practices here in the U.S. which, if I may add, differ greatly from Brittish parliamentary practices. No offense meant of course.
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Roses Are Red And So Am I
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted October 13, 2004 09:00 PM |
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I'm sure he knows that.
Thanks, Consis. 
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Binabik
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Legendary Hero
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posted October 14, 2004 06:19 AM |
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I don't have much to say at the moment either. Other than I thought this had all been resolved. I do have a few questions though.
Are these all Justice Black's words except the italicized portion? Do you know who the italicized portion is attributed to?
Could you (briefly) explain the Establishment and Free Exercize Clauses? Like are these prior rulings, or a collection of rulings and opinions, or maybe simply the understood meaning of the terms "establisment" and "free exercize"?
Due to their usage, it appears these are fundamental tests applied to all cases of this nature.
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted October 14, 2004 06:50 PM |
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1. As to this already being settled:
You are correct. Actually this decision is about five years old. But other similar cases are constantly being pressed by individuals and entities seeking a decision in their favor. Occasionally the Supreme Court will grant certiorari and hear the case if it brings forth new issues or subtleties that previous cases have not spoken directly to. I thought it might be a good discussion starter since prayer in schools and other related establishment clause issues remain so hot. For instance, the Supreme Court recently announced it is granting certiorari to the case of the Ten Commandments statue in the state building, which has been much in the news of late. In that case, though, one of the judges is actually the plaintiff bringing the case. Alabama Chief Justice Roy Moore is championing the state's right to keep the statue in the state building, whereas the other chief justices overruled him in the decision and found it unconstitutional.
http://www.cnn.com/2003/LAW/08/21/ten.commandments/
2. As to who wrote the decision in the original post:
Typically, when the Supreme Court Justices issue a decision, one or two of them take charge of penning the decision. That draft is circulated among the others who may or may not edit, add suggestions, concur or disagree. If all agree to the outcome of the case, then the edits by the others are more writing style suggestions than disagreements, and the decision is said to be per curiam , or standing for all of them. Usually, when some of the judges disagree, they write "dissent" opinions and frequently, the dissenting opinions appear in the decision as well as the majority opinions. Or, if some of the judges agree with the principle of the decision but differ with it on certain points of reasoning or issues, they are said to "concur" and frequently add their twist to the decision in a concurring opinion.
In this case, Justice Black penned the decision. Since there is no indication in this version of the decision, I do not know whether other justices concurred or dissented and those portions were not included here, or whether the decision was per curiam.
3. As to the italicized portion:
Black attributes this quote to James Madison in the sentence preceding the quote. It is therefore safe to assume it an accurate quote by Madison.
4. As to the Establishment and Free Exercise clauses:
This is a good question and it is as important to American style government as any topic on the books. These are two terms of "legal art" that are commonly used to refer to two separate portions of the First Amendment to the Constitution of the United States, which portions refer to the practice of religion. The entire text of that amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As you can see, Freedom of Speech is also addressed in this Amendment. But the two clauses at issue are the first two, referencing religion.
Supreme Court cases of the past have interpreted the Founding Fathers' intend in the first two clauses as two separate ideas. The first idea is that "Congress shall make no law respecting an establishment of religion..." This is the "Establishment Clause, and it is what is behind all the talk about the "separation of church and state." It is at the heart of the above decision.
The second idea expressed in the First Amendment is that "Congress shall make no law... prohibiting the free exercise (of religion)..." This is the "Free Exercise" clause, which is pretty self-explanatory.
If you have any other questions about any of this I welcome them.
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Binabik
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Legendary Hero
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posted October 15, 2004 03:01 AM |
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Does the selection of Justice Black to write the opinion indicate a left leaning decision? Or does it not work that way?
So, among other things, a per curiam decision tends to broaden the scope of the ruling. Whereas a concurrence of opinion is more restricted, leaving the court more open to certiorari. And of course a split decision means Bush/Kerry get to play judge and cast the deciding vote.
How old is Black anyway? Any bets on his retirement if Kerry wins? Hmmm. I say only long enough so it's not quite so obvious.
I understand the Establishment Clause relating specifically to the first amendment, but the logic applied to it by Black can also be applied to a number of things. It's the crux of how I feel about a number of things myself. I think this "Stamp of Approval" should always be considered. Approval or endorsement may not be in the letter, but will always be there as implied by the people.
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Black attributes this quote to James Madison
Slaps self in head. You see, I printed it out, and the dog was really hungry, and he started chewing on it, and.....OK, OK, I admit it, I didn't read the entire thing the first time (but most of it, really). But I've read it all now, every single word, I swear. Please don't hurt me.
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This is the "Establishment Clause, and it is what is behind all the talk about the "separation of church and state"
So that's how that phrase came about. I knew (or heard anyway) that this was first used around the turn of the century and has been in use ever since. It's the whole "freedom OF religion" vs "freedom FROM religion" debate.
My own personal views on the whole matter? Maybe after I re-ink the typewriter
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted October 15, 2004 06:07 PM |
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LOL!!! Well, I'm certainly no constitutional scholar or any such thing. But if one practices government law one almost inevitably dabbles in issues of Supreme Court theory, decision style and influence. I'll try and respond.
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So, among other things, a per curiam decision tends to broaden the scope of the ruling. Whereas a concurrence of opinion is more restricted, leaving the court more open to certiorari. And of course a split decision means Bush/Kerry get to play judge and cast the deciding vote.
Actually, there's really no such thing as a split decision, at least one in which the president has any say whatsoever. The worst case scenario is a plurality with several dissenting judges.
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Does the selection of Justice Black to write the opinion indicate a left leaning decision? Or does it not work that way?
Here's the deal. "Liberalism" doesn't always mean the same thing in judicial decisionmaking as it does in politics. This is a common misnomer and it is because the function the federal judiciary serves is presumably independent of politics. The Supreme Court serves the purpose of interpreting and applying the Constitution.
Those who believe that the Supreme Court is "judicially restrained" from any creativity whatsoever in applying the Constitution presumably are supposed to rely solely on the literal text of the Constitution. However, this is easier said than done when it comes down to the particulars of each case. Sometimes the framers' intent is not clear with respect to a given situation. When this happens it leaves the door open to the justices: How far can they, or should they, go in "creatively interpreting" the text of the Constitution?
Now it is important to remember that in this gray area, the justices could be just as "activist" or "liberal" in favor of politically conservative interests as well politically liberal ones. For instance, the Court could easily start fishing around in the Constitution for language to support a complete prohibition on abortion and overturn Roe v. Wade, although no direct language exists either for or against this practice. For the most part, judicial decisionmaking is seen as somewhat of a "sliding scale," with strict constructionism on one end, and judicial activism on the other, with moderate or mainstream judges (most of them) falling somewhere in the middle, "moderate" or "mainstram" habits and techniques of decisionmaking that is a forced combination of the two extremes.
It's been a long time since I studied where the current justices fall on this line. But as far as Hugo Black is concerned, he has been considered as somewhat of a moderate, with some strict-constuctionist tendencies. However, he repeatedly struck down laws of congress as violative of free speech. So his decisions, reflecting what he believed was a strict construction of the free-speech clause of the Constitution, led him to be seen as somewhat of a judicial "activist" (presumably the opposite of strict constructionism). Thus, original intent and strict construction don't always
go together. The problem is the question of the Founding Fathers' intent. Arguments have been made that it can be seen from the text of the Constitution itslef that framers intended portions of it to be interpreted strictly, and other parts were intended to be interpreted more loosely. Thus, to be faithful to the original intent, strict constructionism may or may not lead to strict interpretation of the text.
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How old is Black anyway? Any bets on his retirement if Kerry wins? Hmmm. I say only long enough so it's not quite so obvious.
I don't know how old Black is but he's been in there for decades and has to be nearing the end of his life (my guess = eighties???) So it is well possible that the next president could be appointing his -- and several other justices' replacements. But I would not count on Bush necessarily appointing strict constructionists if that's what you're thinking. I predict Bush will support the appointments of judicially active individuals who will tend to liberally construe the text of the constitution in favor of Bush's conservative Christian agenda. If anything, Kerry, lacking any such kind of an agenda, is much more likely to appoint moderate judges than Bush is.
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Binabik
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posted October 16, 2004 12:34 AM |
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Actually, there's really no such thing as a split decision
That remark was tongue-in-cheek (idiom meaning it was half joking and half serious). I was referring to a near split. If a justice later resigns, the Pres and Congress can pick a new justice, possibly swinging the vote in the other direction.
[quoteThe Supreme Court serves the purpose of interpreting and applying the Constitution.
Actually I was never clear on this. I haven't looked recently, but remember the Constitution being kind of vague. I was never really sure, but had the impression the SC could take cases involving the interpretation of statute even if there was no Constitutional issue involved.
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How far can they, or should they, go in "creatively interpreting" the text of the Constitution?
I almost said something about this in my last post. With such short text, I don't see how they could do anything BUT look at the intent. Maybe I'm wrong, but I thought lesser court judges actually had a mandate to consider both the intent and letter of the law. Apparently this is viewed somewhat differently when it comes to Constitutional law.
From your description it sounds like I'm a Constitutional activist. The Constitution is written language. Language is merely an attempt to put complex ideas down on paper. I always look at "what did they mean by this". Although I definitely see the point of constructionism. Activism leaves it wide open to just about anything, and places a huge amount of faith in the Justices.
In the political world the term "activist" tends to be associated with liberalism. It may not be technically accurate, but that's the connotation the word has. I hadn't thought of it that way before, but what you say about Bush is absolutely true. I don't know who he might appoint, but what you say about an activist Justice being able to use activism for either liberal or conservative agendas is completely true. With the connotations I have of "activist", it seems like the opposite of what Bush would do. But by your definition, "activism" is a non-partisan term on the political side of things, and could be used to support either the political left or right. I don't feel any differently about my views, but at least I know the proper terms now.
During selection process, I think the appointees philosophy about interpretation is the ONLY criteria which should be involved. (almost only, see below) I hate the litmus test arguments. Both sides of the aisle are guilty of it and it's B.S. Those guys should know from experience that the litmus test is not a reliable indicator even if they DO look only at the political side. They're too busy campaigning for votes when they're suppose to be selecting a Supreme Court Justice.
Look at Robert Bork. That was a major battle. It had nothing to do with activism, constructionism, judicial restraint or any of that. It was all about politics. It all started with a litmus test. The sexual harassment was a big issue, but by far not the only issue. Even if it didn't affect his judicial abilities, I wouldn't want a pervert on the bench. In this regard it's a perfectly legitimate issue as far as I'm concerned.
What bothered me about it was that sexual harassment was not really the issue. Yes, it was a legitimate issue. But the PURPOSE of it in the approval process was to discredit Bork....not because of sexual harassment, but because he didn't pass the litmus test. They should look at whether sexual harassment disqualifies him. If not, go on to qualify or disqualify him as a justice. The litmus test shouldn't be used in either decision.
Bork is the biggest fight I remember, but the same fighting goes on with every single court appointment, even if there are no personal morality questions involved. I don't know, maybe this BS helps keep extreme views off the bench......but that's like using a wrong to make a right.....urrrg, you sure pushed a hot button, or maybe I pushed it myself.
These are friggin Supreme Court Justices we're talking about! Their job is to protect the sanctity of the Constitution, the supreme law of the land, upon which everything else rests. You're putting EVERYTHING in their hands. Justices are supposed to be as non-partisan as possible for a mortal human....it's only common sense the selection process should also be non-partisan. I hate it, it's like taking all the worst things about politicians and concentrating it into a couple weeks of mayhem...urrrrg! Can't those guys, just once, put the good of the country ahead of their own political ambitions and petty squabbling? Just once?
What were we talking about anyway? urrrrrrrrrg! Gimme an hour, I'll be OK.
And Bork was ugly too....
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted October 31, 2004 07:07 PM |
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Binabik --
Excellent post. Sorry it has taken me so long to reply.
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The Supreme Court serves the purpose of interpreting and applying the Constitution.
Actually, this reference of mine was far too narrow. The Supreme Court takes a limited number of cases each year. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law. However, this is not always the case. Article III of the Constitution reads, in pertinent part:
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Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...
Section. 2.
Clause 1: 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;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction...
As you can see there are a variety of kinds of cases over which the Supreme Court has jurisdiction. However, the limits on their time cause them to be very selective respecting which cases they can take.
As for your comments and analysis on the selection process and decisionmaking methods of the justices, I sat here nodding throughout nearly your entire post.
Except I think you must have been talking about the confirmation hearings for Clarence Thomas (?) not Robert Bork. Bork's roasting took place back in the eighties I think, and had nothing to do with sexual harassment. The focus during Bork's confirmation process was, I recall, the general Dem outdry that he would use "strict constructionism" to avoid and even overturn interpretations of the constitution which were supportive of the Civil Rights Movement, abortion, etc.
Many see this is the other end of the spectrum: Using the alleged facade of strict constructionism to forward a political agenda, instead of judicial activism. My opinion: you are absolutely right about the brevity of the Constitution in a large sense requiring a degree of interpretation. The whole process is very tricky and that's why so much depends on the intellectual integrity and objectivity of the justices, as you so aptly pointed out. We constantly walk a tightrope between constructing the text so narrowly as to fail to apply the clear intent of the framers (leading for wider and wider pushes by Congress and the citizenry for amendment to the Constitution) and being too active in interpreting things into the Constitution that were never intended to be there.
An aside: Interesting development respecting Chief Justice Rhenquist this week, with the thyroid cancer and all. This development underscores the possibility of Bush appointing judicial activists to the bench, which appointments are for life, who support the arch-conservative fundamentalist political agenda forwarded by the Bush administration.
Some would say he's already tried to do that in the lower federal courts. I must also point out, however, that a couple of those appointments were old friends/co-workers of mine and were not (IMHO) of the judicial activist cloth at all. The Congressional filibusterer by the Dems was completely inappropriate, left numbers of benches unseated while their dockets backed up, and left these peoples' lives hanging in limbo indefinitely.
Geeze. It just gets better and better, doesn't it?
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I have menopause and a handgun. Any questions?
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Binabik
Responsible
Legendary Hero
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posted November 01, 2004 07:06 AM |
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Except I think you must have been talking about the confirmation hearings for Clarence Thomas (?) not Robert Bork.
Woops, you're right, I got the name wrong. Well, except for the part about Bork being ugly.
Actually I think there were 2-3 Reagan appointees who were given a hard time. If I remember right there was another one about the same time as Bork who withdrew when it was discovered he had OMG! smoked pot. Can't have justices passing herbs around in the back chambers now can we? ( "Hey Rhenquest, you got a seed burning your robe!".....smacks burning seed off robe "From now on Kennedy can't clean it any more. And O'Conner, quit Bogarting and wipe that silly grin off your......oooh chocolate chip cookies!"......suddenly has silly grin himself! )
Ahem. One thing that has been shown more than once is that appointees to the Supreme Court are not very predictable. O'Conner is one example. And I think either Kennedy or Rhenquest was another. I think there was also a Nixon appointee who turned out to be pretty centrist.
As for the lower court appointments, I'm sure the president delegates the selection. There's way too many of them for the pres to spend much time with it. I suspect at the lower court level it has as much to do with who owes whom a favor as anything else. Everything I've heard about the legal system is that it's definately an ol' boys mentality. I've known two female lawyers who got out of it for that very reason. One got out of law completely and the other now works for the state bar in the ethics side of things.
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted November 01, 2004 04:48 PM |
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If I remember right there was another one about the same time as Bork who withdrew when it was discovered he had OMG! smoked pot. Can't have justices passing herbs around in the back chambers now can we? ( "Hey Rhenquest, you got a seed burning your robe!".....smacks burning seed off robe "From now on Kennedy can't clean it any more. And O'Conner, quit Bogarting and wipe that silly grin off your......oooh chocolate chip cookies!"......suddenly has silly grin himself! )
ROFL
(Scalia: Oh, man, what's that dude doing over there in the corner? Like, I know a video camera when I see one... Ohhhh, Mannn.. Bummer.... Quick, hide the stash!!! -- 'Sir, like, sir, you'll like have to uh, turn over that tape man... it like has no socially redeeming value...'")
(Please forgive my irreverence. I for one inhaled. Guess I'll never sit on the top bench.)
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As for the lower court appointments, I'm sure the president delegates the selection. There's way too many of them for the pres to spend much time with it. I suspect at the lower court level it has as much to do with who owes whom a favor as anything else.
I dunno how the selection process works, but my guess is that the pres has advisors who locate candidates for nomination. Quote:
Everything I've heard about the legal system is that it's definately an ol' boys mentality.
Unfortunately this reality still looms rather large, based on my own recent experience, but I will tell you I believe it perpetuates itself insidiously and for the most part is not intentional. The guys at the top just still tend to go with what they know, including some of my own old friends. There have been appointments to public office around me that I find unbelievable in the face of extremely better qualified women/individuals of color, but the familiarity between the employer and employee made him more of a known quantity than the newcoming stranger. And that's that.
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I've known two female lawyers who got out of it for that very reason.
Yes, and you happen to be talking to one of them right now.
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I have menopause and a handgun. Any questions?
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