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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 09:24 pm (UTC)If the People disagree and think that the death penalty needs to stop being considered under amendment 8, then they should propose a new amendment to let the People settle the issue once and for all.
Other clauses also fall under moral interpretations when they reach the point of the Supreme Court, including non-establishment, arms rights, decency in public forum vs. freedom of speech, and the very definition of Due Process itself.
Similarly, so is the case of gay marriage, where one group's definition of morality would infringe upon another group's definition of "no state shall abridge the privilages of a citizen of the US". Fixing that IS a moral judgement, period.
There's also the overall question of whether or not Scalia's accusations of "dictating morals" are actually what the majority opinion holders used as their justification. Extreme conservatives are hardly well known for getting the intentions of their liberal opponents correct, and often intentionlly mis-portray them in public for their own ends. Scalia is well known as a pundit in many of his writings just as much as Hannity or Limbaugh.
The other factor is the protection from Mob Rule that the constitution is meant to guarentee as well -- if the "people" of a particular region suddenly feel the need to kill children, is it their moral right to? at what point does the nation step into a region and say no, that's now how its supposed to be? local, state, and national laws are often passed in the heat of passion over a perceived wrong (look at PATRIOT or DMCA), and the point of the court system is to protect the people from when the the legislators or executives make decisions under such rash conditions.
Again, it comes from an interpretation of the constitution from a moral perspective, aiming to consider what the framers (or the first people to actually use the thing, like Judge Marshall) had in mind at the time to protect the People from themselves or the abuses of their elected representatives.