Supreme Court Justice Ruth Bader Ginsburg spoke recently in South Africa about the use of the law of foreign countries in the Court's decisions.John Hinderaker of Powerline provides a detailed criticism of this concept:
"In reality, reference to foreign law is nothing more than an ad hoc tool to be invoked or ignored at will by justices who want to advance a left-wing agenda."
How do you choose which country's law? For Lawrence v. Texas, the homosexual sodomy case, why not choose the law of any Muslim country? Because politics, not the rule of law, guides judges like Ginsburg. The words of the Constitution mean nothing and can be twisted in any way to suit leftist political preferences.
The end justifies the means.
9 comments:
Paul Mirengoff suggests that she be impeached, or at least that she has commited impeachable acts.
If we had a Senate worth its pay it would at least vote to censure Ginsburg.
Knucklehead
The executive branch can refuse to enforce the commands issued by the SC.
See Worcester v. Georgia, where Andy Jackson famously said, "John Marshall has made his decision, now let him enforce it."
So this approach has been taken in the past. Difficult to imagine today, but the change is noteworthy.
Congress also has the power to defund and disband the "inferior" courts, below the SC.
Congress can impeach a sitting justice on the SC. It has never been done that I know of, but there is no inherenrt reason it cannot be done.
Article III, Sec 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Note that the standard for removal here is failing to exibit "good behavior", not high crimes and misdemeanors.
As for checks and balances on the judiciary, there's appointment and impeachment. There's also passage of statutes to negate court rulings.
Roosevelt tried to pack the court to no avail.
If I recall the Federalist Papers, the intent of the lifetime appointment was to insulate the judges from the whims of politics, and the worry about the threat of losing their position as the result of an unpopular ruling.
So, the way to influence the court is by electing presidents and senators who stand up for principles in their judicial appointments.
There is technically no reason that Congress cannot remove any judge or justice at any time, based on the "good behaviour" standard. Chewing gum on the bench, Judge Smith? Out you go!
The limitation is political. There are large numbers of people who hold a hugly elevated opinion of the courts, and despise Congress. So I'm not sure Congress could get away politically with impeaching judges. But Constitutionally, there is nothing stopping them from doing so.
brylun
Article III does not state that judges shall have a life-time appointment. It states that they shall "hold their offices during good behaviour". That's all.
The life-time appointment bit seems to be a tradition which has grown up over the years.
I'd add (3). Congress has the power to impeach any judge or justice, on grounds far less demanding than that required for removing a president.
In addition to being spelled out in article III, this is also mentioned in Federalist 79.
"But with regard to the judges, who, if they behave properly, will be secured in their places for life, .."
(Iitalics mine)
Also;
"They (judges) are liable to be impeached for malconduct by the House of Representatives, and tried in the Senate, and if convicted may be dismissed from office, and disqualified from holding any other."
See Worcester v. Georgia, where Andy Jackson famously said, "John Marshall has made his decision, now let him enforce it."
Flenser, as someone with both Cherokee and Choctaw ancestry, I've got to admit I don't find this precedent very comforting.
Look, Ginsburg is not stupid, not uneducated, and can think logically.
She's just wrong.
And Sandra does have a point. I don't think we shouldn't criticize our judges, but we still need to respect the institution. We saw the erosion of that respect after the 2000 election and it wasn't pretty.
Knuck, you're close to right on Worcester v. Georgia: the Supreme Court held that Georgia couldn't impose its laws within the Cherokee Nation's land. The Removal was a consequence, but was enforced by Van Buren (spit).
Seneca, I'm sure you would not suggest that constitutional issues be settled on the basis of how an individual feels about them.
In any event the case illustrates a point; that the courts in the modern era are treated with extraordinary deference compared with times past. The courts themselves seem disinclined to accept any checks or balances. What would you suggest be done?
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