Centerfield

This court brouhaha all about the exercise of politicial power from the far christian right. Any doubt about that should be laid to rest with the events this weekend in Tennessee that Frist and others are either attending in person or by video.

BTW I couldn't help but notice the "left wing judicial activism" without mentioning what right wing judges do.

Just a couple of links on right wing judicial activism. Even Scalia has done what he has accused others of doing.

http://writ.news.findlaw.com/dorf/20000501.html

and this excerpt
http://www.stcynic.com/blog/archives/2005/04/adam_cohen_on_s.php

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

I think it's a little unfair to label that proposal a "conservative proposal". The article trys to link Dobson and Tony Perkins to DeLay and Frist by noting that the taped convesations "took place during a Washington conference last month that included addresses by House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist." But that's a far, far cry from Frist or even DeLay participating in those discussions.

While I certainly wouldn't be surpised to learn that Congressman DeLay endorses this loopy proposal, Senator Frist is clearly on record as opposed to the idea of defunding the courts, as the article notes.

I would also point out that many prominent conservatives, including Ted Olson, have stepped up to the plate to defend an independent judiciary.

Finally, while I certainly don't support what Dobson and Perkins are calling for, I think that the increasing involvement by judges in political decisions (finding constitutional "rights" that have somehow lain dormant and unrecognized for 216 years) is a significant cause of the current "politicization" of the courts. When the court forbids the normal political processes from acting in a particular area (be it abortion, the pledge of allegiance, the death penalty, or the latest controversy du jour), then there are only 2 ways for the people to change that decision, constitutional amendment or new judges. Unsurpisingly in a democratic society, where a lot of people believe that judges have usurped their democratic power, the people whose democratic options have been surpressed will fight back on all fronts.

In short, if the judges would stay out of politics, then politics would stay out of judging.

In point of fact, the 11th Amendment is not interpreted to say that citizens cannot sue their own states. In a case called Hans v. Louisiana, 134 U.S. 1 (1890)--yes, it's 1890, not 1980, well before Justice Scalia's time--the Supreme Court of the United States held that citizens of a state could not sue their state in federal court without that state's consent. There are some exceptions, but they all require Congressional action. The basis for state sovereign immunity lies well before the 11th Amendment, well before the Constitution of the United States, well before the Articles of Confederacy, and deep within the common law roots of the Anglo-American legal tradition.

In fact, what the 11th Amendment has been interpreted to do recently (in addition to derogate a Supreme Court decision in a case called Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) that allowed citizens of one state to sue a different state in federal court without that state's consent--which was the whole point of the amendment) is kind of "update" state sovereign immunity. Since the 11th Amendment was ratified after the Constitution was ratified, the Court has in the past couple of decades been telling us that Congress cannot abrogate state sovereign immunity based on Congress's Article I powers (because the 11th Amendment came later); accordingly, Congress can only abrogate state sovereign immunity based on constitutional grants of authority after the 11th Amendment--those amendments I listed in this post.

(To avoid confusion, since I was talking about regulation in that post and abrogation in this post, note that abrogation and regulation are different; Congress can regulate without abrogating state sovereign immunity, but doing so doesn't allow citizens to sue their states in federal court. But the language "enforce this article by appropriate legislation" grants Congress power to do both if that language accompanies a prohibition against state action.)

Not easy to characterize it as a conservative proposal? At minimum it's a proposal from religious conservatives. You don't hear any liberal proposing this inane idea that's for sure.
For the sake of argument let's say that a 'sect' of paternalistic religious conservatives who want unlimited power who want to defund the courts.

As for politicization of the courts - unpopular court decisions are part of democracy. When the court struck down Jim Crow laws including those that prohibited marriage between different races, those decisions were supported only by a small minority of Americans. Thus thwarted was the political will of the majority. Yet the contitutional rights of all Americans became enhanced and strengthened by that very act.
Should the court have held its finger to the political wind and decided otherwise? If we follow the reasoning about the judiciary interfering with the will of the people Gore would have been president in 2000.

The normal political process INCLUDES judicial review. They are supposed to decide if laws are unconstitutional, if the Congress has overstepped its bounds. That too is part of the process of checks and balances.It helps this country avoid the excesses of power that have brought down so many other countries. Changing judges on the whims of a majority would politicize the judiciary even more and lead us down that very path of abuse by those in power. Right now it seems to me that the rapture right looks upon the courts as an impediment to its goals. Too bad. If they want a theocracy let them move to Israel and take over that country.

"In short, if the judges would stay out of politics, then politics would stay out of judging."

I agree, Pat, it seems legislatures have pawned off hard political decisions on the judges at times and the judicial branch has allowed this and even embraced it at times. I don't think activism has gone as far as DeLay would like us to think, but I believe we need our Congressmen make the decisions they complain judges are making for them.

While I agree with some aspect of Scott and JD's cynicism I find myself even more cynical - legislators are more than willing to pass laws to please constituents, no matter how objectionable, and then, after the courts strike them down, they can point to the judiciary and say "see, it's not my fault!" Thus the judiciary is primed by the legislators for public disfavor, which may give them more power later to bend the judiciary to their liking.

Question for JD, if inre the 11th amendment- regardless of whether the roots exotend deep into previous (pre US constitution) law, what should a judge consider?
Tradition or the Constitution?
good post btw

Marcus,

One traditionally approaches the answer to your question from the perspective that English common law was imported to the United States. Each original state was once a colony, and each colony became an independent sovereign when it declared independence from Great Britain. Accordingly, each state inherited all the provisions of English common law relating to sovereign immunity--state sovereignty comes from common law, but common law includes much more. Many of these original states, and Virginia is an example, specifically enacted "reception statutes" that declare that all principles of common law not repugnant to the laws of that state are valid within the state.

Statutes enacted by the legislature derogate common law. The Constitution of the United States may be viewed either as a statute or as a treaty or contract between all the party states. Either way, the Constitution stands in derogation of the common law whenever it speaks; but where silent, the common law is preserved. We see this in the 10th Amendment, where all powers not resident in the United States by virtue of the Constitution are reserved to the States, or to the people. But the operative functional unit of sovereignty, despite all the "popular sovereignty" themes taught in grade school civics, is the State.

Remember that the United States is a creature of states' action, not the other way round; the United States is nothing more than what states allowed it to be.

Rick,

I think they key is to not let "activist" judges get appointed to the Judiciary in the first place..... and by "activist" I mean any judge (of any political bent) who bases thier decision not upon the ACTUAL letter or spirit of the law but upon what they believe the law AUGHT to say.

I DO think that there need to be credible checks on the power of the Courts, like defunding, disenfranchisement of offices, impeachment or simple lack of enforcement. But like all such threats in actual practices it should be used exceedingly sparingly and only in instances of extreme neccessty. I do not think we are there yet.... but I DO think it is a healthy discussion to have publicaly from time to time.... if only to remind the men in black robes that they are still men, not gods.