Thursday, October 04, 2012
Supreme Court preview
The U.S. Supreme Court started its new term a few days ago. Here's a preview of some of the big cases they have decided to hear. The affirmative action and gay rights case are sure to cause controversy no matter how they are decided. I certainly hope they will add a Second Amendment case. A more complete list of cases accepted for review so far is here.
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That dang drug sniffing dog in Florida seems to be popular? In my work, any unusual sights, sounds, smells and/or behavior give legitimate reason to begin first aid. A search based on a dog's sensory ability is, IMHO, reasonable. Take those manipulative con-artists back to jail. Next case pleeeease!
ReplyDelete44: Thanks. I agree. I don't understand this one (Fla. v Harris). Based on precedent, this should be P.C. Perhaps there is more to it than the blurb we got. Stay tuned!
ReplyDeleteThe following excerpt is from Terry Eastland's Weekly Standard book review titled "Show some restraint;
ReplyDeletethe Constitution is imperiled from the bench." The author he's critiquing was a Reagan appointed federal judge by the name of Wilkinson.
" ...Wilkinson-versus-the-originalists aside, his interest is not in showing a causal connection between a particular theory and a decision in every activist case. His point is about the future. Cosmic theory has come to dominate the way the legal profession (and, indeed, the educated public) thinks about constitutional law, with judicial restraint effectively kicked to the side. We now have 'competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.' Inevitably, whether advanced in particular cases or not, cosmic theory will have more and more influence among judges and justices:
The ingredients of the cosmic theories are so stacked against self-governance that the temptations for judicial misadventures will only increase in years to come.
Our future is a 'judicial hegemony' in which democratic liberty has been more and more circumscribed.
Wilkinson argues that the only way to prevent this future is to eschew grand theory ('what’s needed is not yet another theory but an escape from theorizing') and to see the merits of restraint. Cosmic theory proves to be the bête noire of Cosmic Constitutional Theory: Wilkinson writes that the Constitution is not an abstraction, and not as amenable to theory as it is to experience. Indeed, the Constitution was 'designed to resist answers and incorporate tensions rather than yield its secrets to a single or comprehensive viewpoint.' Judicial restraint, on the other hand, accepts the Constitution as written, and needs no theory for its interpretation.
Still, Wilkinson offers, if not a theory, certainly an argument for judicial restraint—which, he acknowledges, is not mentioned in the Constitution. It is a strong argument, grounded in the structure of the Constitution and holding that the grants of power in Articles I, II, and III 'leave no doubt that the powers of the executive and legislature call for active initiation, while the power of the courts is passively framed.' Not only is judicial restraint a 'bedrock principle of America’s founding,' it also rests upon a premise of republican government, which is that those in power 'less fettered by such formal restraints as periodic elections' (meaning judges) 'must feel more constrained to hold themselves into check.'
Here, Wilkinson understands judicial restraint as republican virtue, by which the Founders meant decisions or actions that put first the common good. Not surprisingly, as Wilkinson observes, judicial restraint is often referred to as judicial self-restraint. The subtle move Wilkinson makes is from theory to character.
If Judge Wilkinson is right about the need for more republican virtue on the bench, it is sobering to wonder whether the sources of such virtue (schools, churches, and families, in the Founders’ estimation) are up to the task of helping generate it. If they aren’t, the threats to democratic liberty may be even greater than he contends in this tightly written, provocative book."
See the entire article at http://www.weeklystandard.com/articles/show-some-restraint_652372.html