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acroyearOn today's decision (which went 100% down the "party" line, 5-4) in the Supreme Court against executing under-18s, Scalia's minority opinion included the phrase, "The court thus proclaims itself sole arbiter of our nation's moral standards".
I wonder if he would still say exactly that when abortion or gay marriage finally reach his chambers. Would he accept the case and make his personal feelings the nation's moral standards? Would he defer it back to the states (and thus STILL set a moral standard)?
Once a case has made it to the supreme court, the court sets the nation's standard, period, whether by action or inaction. If it refuses to hear a case so the original decision (within a limited jurisdiction) stands, it sets the precident for other jurisdictions to argue with by fiat. If it hears a case, its decision sets the standard. There is no way out.
Even trying to be more explicit in the constitution by deferring some decisions back down to the states will often just send the decision right back up to the court. As soon as the situation exists where people have more rights in one state not recognized by another, or more specifically more rights recognized by federal government because they are in one state and not another, it becomes a federal responsibility and the federal and supreme courts MUST resolve it.
The federal government can not recognize a person having different rights because of where they live unless the constitution explicitly permits it (as it does for territories like Puerto Rico, and the Nation's Capital where only an amendment to the Constitution would validate actually giving DC proper representation in Congress).
If he didn't like the responsibility for setting the nation's standard, he shouldn't have accepted the f'in' job, because that's been the Supreme Court's job for the last 200 years.
And in my opinion he accepted the job BECAUSE he wanted to set a moral standard for the nation on specific issues. I believe he was explicitly appointed to do exactly that.
I wonder if he would still say exactly that when abortion or gay marriage finally reach his chambers. Would he accept the case and make his personal feelings the nation's moral standards? Would he defer it back to the states (and thus STILL set a moral standard)?
Once a case has made it to the supreme court, the court sets the nation's standard, period, whether by action or inaction. If it refuses to hear a case so the original decision (within a limited jurisdiction) stands, it sets the precident for other jurisdictions to argue with by fiat. If it hears a case, its decision sets the standard. There is no way out.
Even trying to be more explicit in the constitution by deferring some decisions back down to the states will often just send the decision right back up to the court. As soon as the situation exists where people have more rights in one state not recognized by another, or more specifically more rights recognized by federal government because they are in one state and not another, it becomes a federal responsibility and the federal and supreme courts MUST resolve it.
The federal government can not recognize a person having different rights because of where they live unless the constitution explicitly permits it (as it does for territories like Puerto Rico, and the Nation's Capital where only an amendment to the Constitution would validate actually giving DC proper representation in Congress).
If he didn't like the responsibility for setting the nation's standard, he shouldn't have accepted the f'in' job, because that's been the Supreme Court's job for the last 200 years.
And in my opinion he accepted the job BECAUSE he wanted to set a moral standard for the nation on specific issues. I believe he was explicitly appointed to do exactly that.
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Date: 2005-03-01 06:36 pm (UTC)Well, yeah. HIS standard, which is why he's bitching when it doesn't go his way. It's the same difference between "constructionalist judges" (good because they say what the right wants to hear) and "activist judges" (bad because they do what the left wants) when in reality, they're both doing the same job.