This "Judicial Philosophy" thing is still bothering me

[Maraya1969]

The last time I posted about it no one responded. I put the definition of the word "Judicial" up. But now I have perused the definition of "Philosophy" and I wonder what the Hell does that have to do with being a judge? In all the definitions of "Philosophy" a person's particular beliefs, opinions and perceptions are involved. A judge is supposed to "Interpret the law" not philosophize on it!


So when Bush says Meirs has a good Judicial Philosophy he means she has her own beliefs and will apply them to the current laws in the best way she can to parallel the two. That is just not the way its' supposed to be done.

It seems to me that the Supreme Court Judges are doing full time jury duty and that should be the end of it. They should follow the law as it is written just as juries are given instructions to do before being sent out to deliberate. They are just ordinary people with extraordinary titles.

And in this light I think Roberts gave a lot of good answers by saying that he will interpret the law as it is stated. His particular PHILOSOPHY should not matter.

And one more thing. If Bush et al want to overturn Roe V Wade they will have to conclude that my uterus is not my own private organ and protected by my Right to Privacy. It is not just a matter of deciding whether they think abortion is moral or immoral. That is not the question at stake. When did our Supreme Court become our moral gurus?

I think it is high time we remind the people who want to mess with our rights as Citizens of the United States of America that they just can't make decisions because something bothers them. It is none of your damed business; just shut up and get over yourselves already!



The definition of PHILOSOPHY according to Webster:

1. Love and pursuit of wisdom by intellectual means and moral self-discipline.
2. Investigation of the nature, causes, or principles of reality, knowledge, or values, based on logical reasoning rather than empirical methods.
3. A system of thought based on or involving such inquiry: the philosophy of Hume.
4. The critical analysis of fundamental assumptions or beliefs.
5. The disciplines presented in university curriculums of science and the liberal arts, except medicine, law, and theology.
6. The discipline comprising logic, ethics, aesthetics, metaphysics, and epistemology.
7. A set of ideas or beliefs relating to a particular field or activity; an underlying theory: an original philosophy of advertising.
8. A system of values by which one lives: has an unusual philosophy of life.

[sandnsea]

1. You don't have a right to privacy

That was concocted by the liberal activist court who created law that wasn't specifically in the constitution, or so they say. My own philosophy is that any idiot would know the founders never dreamed they HAD to say privacy was a given, and that would influence my interpretation of actual law were I to be on the Supreme Court. That's an example of how philosophy is important in deciding Supreme Court cases and that you do not assume that because a right isn't specifically IN the Constitution that it's automatically acceptable to make a law against it.

[Occulus]

3. Amendment IX

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

[Lone_Wolf_Moderate]

5. Hold on a sec. I have a thought..

The 9th Amendment makes clear the idea that rights not specifically enumerated in the Constitution belong to the people. Shouldn't this shut the mouths of all the so-called originalists who suggest that rights don't exist, because the Founders "wouldn't have dreamed of allowing them?" (i.e. privacy, First Amendment right to look at adult porn, etc). Am I missing something?

[sandnsea]

16. Hey, I'm on your side

I was just trying to explain to the OP what buying into the right's constructionist approach really means.

[havocmom]

2. Sometimes, when you post something that doesn't get responses

it's because you pretty well got it all said right and said it all.
:thumbsup: :thumbsup: Maraya1969!

Well said.

[Maraya1969]

8. Hey thanks havocmom!

[Neil Lisst]

4. The role of a justice is to rule on the law.

The role of a Supreme Court Justice is to INTERPRET the law. The judge's judicial philosophy is always relevant. It's a term of art that you could find online, and it means more than you can infer by separately looking up the two words in a dictionary.

You write as if the law is some hard and fast, concrete, never changing thing. It's not. It's alive, and it's massive, and it has interconnected pieces that defy logic unless you know the history.

The Supreme Court hears cases that are each somewhat different from other cases they have heard. They never hear the same case twise. Like Solomon, they rule, and what they rule IS the law.

The law is what the judges say it is. That is our system, created by the founding fathers who you allegedly worship, and vested as a co-equal branch of government with the legislative and executive.

[Laelth]

12. Concur.

Judges do make law. Judges have always made law. In fact, it's only recently that we have come to believe that legislatures are "supposed" to make the law. It is merely a modern myth that judges are not supposed to make the law. Don't fall into the trap of strict constructionist rhetoric.

-Laelth

[Maraya1969]

13. Well then can you splain me how a lawyer has any qualifications to be

a judge for the Supreme Court? Doesn't a frog need to be a tadpole first? That is the way they do it in the state I am in - starting as a mediator and working your way up.

Talewgdog said that each judge interprets the law differently. Do you learn how to do that in law school or can you learn it as a lawyer?

As a lawyer you are fighting for you client and that is your job. You look for ways to get around the law and ways to use the law for your client's benefit right? Court TV reminds me of a football game where each side, (shown to me by the commentators) have a strategy. It is rather amazing and kind of scary.

I know I may be all over the place here but I keep thinking about this Harriet Miller thing and the more I think about it the more INSANE it seems to put her on the Supreme Court.

I may be playing Devil's advocate here but interpreting the law seems to me that it should be a matter of intellect and education and not on what church you go to or what religious or moral beliefs you have. I know the Senate tries to find these things out in the confirmation process but it a perfect world it seems like it shouldn't matter.

EDIT: I interpreted the wrong word.

[sandnsea]

17. Definitions of Philosophy

When people talk about judicial philosophy, they aren't talking about #8, ones personal values system or a personal philosophy of life. They're talking about the rest of these definitions, a philosophy gained from study and reason; and even a study of different philosophies themselves.

1 Love and pursuit of wisdom by intellectual means and moral self-discipline.
2 Investigation of the nature, causes, or principles of reality, knowledge, or values, based on logical reasoning rather than empirical methods.
3 A system of thought based on or involving such inquiry: the philosophy of Hume.
4 The critical analysis of fundamental assumptions or beliefs.
5 The disciplines presented in university curriculums of science and the liberal arts, except medicine, law, and theology.
6 The discipline comprising logic, ethics, aesthetics, metaphysics, and epistemology.
7 A set of ideas or beliefs relating to a particular field or activity; an underlying theory: an original philosophy of advertising.
8 A system of values by which one lives: has an unusual philosophy of life.

[TaleWgnDg]

6. The term "judicial philosophy" is a misnomer, i.e., it is . . .

.
The term "judicial philosophy" is a misnomer, i.e., it is . . . an incorrect term when applied to describe a judge's duty. The term is used by layppl not legal professionals. However, of late some in the legal profession have been known to use the incorrect term.

What is meant when the words "legal philosophy" are used are the words "legal theory." For example, Justice Scalia has admitted to using the legal theory of originalism and disavows being a "strict constructionist" as many have said of him. Justice Thomas also professes to be an "originalist" or "textualist" in legal theory despite the fact that Thomas is more inflexible than is Scalia. However, someone such as Justice Breyer is said to be a "pragmatist" as well as believing and applying the legal theory of a "living" constitution as opposed to Scalia's (and Thomas') view of a "static" constitution in his "originalist" (or "textualist") legal theory.

In other words, each of the Justices believe in a manner in which the constitution is to be, and is, interpreted and applied. And, that manner in which the constitution is interpreted and applied is called a "legal theory" which as I stated earlier is also (incorrectly) called a "legal philosophy."

As a parting note I will add that you are correct in your belief that the word "philosophy" is inapplicable when citing to legal theories, for the judicial interpretation and application of law is not philosophy. I hope this is helpful. It's difficult at times to convey the law to those who are unfamiliar w/ it. But it was a great question and I couldn't resist a try at it.
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[Maraya1969]

9. Your response was good and appreciated. Philosophy is too

personal of a word. And even though they use these words "originalist" and "texualist" from what I have heard from the Supreme Court, (which mainly the 2000 election) they should include "the way I want things to be"

[TaleWgnDg]

15. Ouch! You've hit upon an area that is very insightful . . .

.
Ouch! You've hit upon an area that is very insightful. And difficult to explain to those not trained as lawyers.

Some judges may interpret and apply constitutional law in an "originalist" or "textualist" or "pragmatist" or "minimalist" manner (theory). However, a justice should never do so subjectively as you suggested, i.e., in "the way I want things to be." Because if they did interpret and apply the constitution in "the way I want things to be" then it would not be within the bounds of the law. That is, it would be unconstitutional. That may seem to be a fallacy . . . and in a way, it is a fallacy.

The law must remain objective and not be subjectively applied as within the eyes of each judge. The law must be applied in a lawful construct of law within objective theories as applied to the law. If a judge applies "the way I want things to be" then s/he is not applying law, not applying law that would be constitutional. Valid constitutional law is not subjective ("the way I want things to be"); instead constitutionally valid law is objective within the accepted construct of objective law. Thus, all these theories!

This is at the very heart of the matter as you suggested. And it's what is going on when the Senate Judiciary Committee and other Senators want to know what legal theory would be applied (thus the outcome) to future SCOTUS cases. SCOTUS nominees cannot discuss how they will decide future cases. If they did discuss potential future cases then the outcome would be predetermined and that justice would be biased and must recuse him/herself from the bench not hearing the case. Thus, John G. Roberts, Jr. never answered any of the questions about this . . . then the Senators attempted to ascertain from Roberts whether he thought past cases were decided correctly. He, again, refused to discuss (most) of those cases because he stated that such facts and circumstances may come up b4 SCOTUS again. For example, Roe v. Wade, affirmative action, commerce clause, etc.

BTW, there have been many justices who never sat on any bench, state or federal, before being nominated to SCOTUS by a president and confirmed by the Senate. Miers is not unusual in that regard. However, what is unusual about Miers is that she has no trail. Absolutely no trail whatsoever upon which to draw the "politics" of it all. Whether she will decide SCOTUS cases as does Scalia (a textualist/originalist)? as does Thomas (a more narrow textualist/originalist) than is Scalia? as does O'Connor (a pragmatic factualist)? There's no clue anywhere as to how to determine the outcome of SCOTUS cases if Mier were seated on the bench. And, there lies the rub.

The bottom line here is that judges/justices do not interpret and apply the law (subjectively) "the way I want things to be," instead they chose a legal constitutional theory that is valid u/ the constitution as well as their insight into how the law should be objectively interpreted and applied. The fallacy of all of this legalese is that . . . hey, the outcome may be the same in either instance, whether "the way I want things to be" or an objective legal theory! However, a judge who adheres to his/her oath and legal ethics does not determine a case with an outcome that they personally desire because they must stay within the objective construct of constitutional law. This is why, say, an Evangelical Christian or a Roman Catholic may not want abortions but must adhere to the law when determining the outcome of a case re Roe v. Wade.

Finally, there is no U.S. constitutional requirement that SCOTUS justices be licensed attorneys-at-law.

I hope this has been of some help.
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[Neil Lisst]

10. Au contraire

I believe you will find the term "judicial philosophy" widely used in legal circles, as evidenced by this article in the Sept 2005 American Bar Association Journal.

"In a large sense, though, it was typical O’Connor. She used a favored test to weigh constitutionality—here, the notion that the state may not appear to endorse religion—with a nod to the reasonable observer. She wrapped her judicial philosophy in no-nonsense writing and, as so often in the justice’s career, served it in a concurrence."

http://www.abanet.org/journal/redesign/09fscase.html

[Neil Lisst]

11. Judicial Philosophy is an accepted term among the bench

Here's a course taught at the National Judicial College, run by judges.org. The name of the course?
Judicial Philosophy and American Law.

http://www.judges.org/courses/course_dates/2005/Course.2005-08-27.0918

This is where I say "I rest my case," and move for a directed verdict.

[izzie]

7. I do not understand what they mean by court making law

Seems to me that is what they have always done. If the law does not go along with the Con. it is gone. So if you get rid of a law is that making law? I see them doing as they always did plus keeping up with the times.

[TaleWgnDg]

14. "Court(s) making law" is used as a derogatory term and is equated

.
"Court(s) making law" is used as a derogatory term and is equated with the Judicial Branch over-stepping its constitutional boundaries into the Legislative Branch and "making law from the bench" as would (and should) the legislature of the various states and federal government.

However, there's a deep, wide caveat to all of that.

You see, all courts, all judges "make law." That is, the judges and justices who sit on America's court benches all interpret then apply law. Their new decisions, rulings, opinions that they all make are then called "case law" (or "caselaw"). Case law broadens or narrows existing law. So, you see, courts and judges and justices do, indeed, make law. Those who oppose the decisions, rulings, and opinions of certain judges, justices deride them by saying that they are "making law" when they should leave that constitutional duty up to the legislative branch of government.

Another derogatory term in the same vein is "legislating from the bench" which is the same issue.

Another derogatory term is "activist judge" or "activist bench" which means that the speaker is unsatisfied with the court's opinion and choses to claim that the judge has gone beyond his/her legal duty and gone beyond what is legally prudent and has gone into an unconstitutional area. Judges should be prudent and leave what is "legislating" to the legislature and not be an "activist" on the bench.

All is in the eyes of the beholder.

For example, one could apply some of the above by saying that the Rehnquist Court (SCOTUS while Rehnquist was Chief Justice) was the most activist court in the entire history of SCOTUS because the Rehnquist Court over-turned more U.S. congressional laws than any other SCOTUS. What a bunch of activist justices making law from the bench they were! Let's hope that the next SCOTUS Court u/ Roberts no longer legislates from the bench!


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[Maraya1969]

18. In my opinion here is an example of a Judge legislating from the

bench. This is how someone wrote about it in a forum.

"The Tomato Patch Murder, a story also known locally as the Tomato Patch Killers, is a true story about a family in which the grandfather was molesting and abusing his progeny. One of them, a grandson, I believe, took it upon himself to revenge the wrongs done unto him and his siblings, by killing the grandfather. They buried him underneath the tomato plants. Hence the name.

I have spoken to people who knew the brothers and sisters, or cousins. It is considered a sad chapter in Long County history."


The jury found the grandson NOT GUILTY of murder but found him GUILTY of burglary because he took some money from his dead grandfather. They wanted this kid to get off light because the grandfather was such a horrible man.

So the JUDGE sentenced the kid to LIFE IN PRISON for burglary. It was pretty obvious that the judge thought the kid should have been convicted of murder. This was on Court TV. I think the judge should go to jail for being such a cruel person. This whole case still bothers me.

And I know it is not actually "legislating" from the bench but the judge sure got what he wanted. He is definitely a bottom feeder.