Justice Scalia and The Courts.
Justice Scalia's book is interesting.
I am not through it and not even through Justice Scalia's opening essay (the books consists of essays in response by other eminent legal scholars such as Lawrence Tribe) but one phrase sums up his belief in what is wrong with our judicial system.
According to Justice Scalia too many judges look at a case and then say
This is what Mark Levin refers to as judges foisting their "personal policy preferences" upon the public. In fact this is exactly what happened in the recent decision to prohibit the execution of those who committed their capital offense as a minor. The majority did not like the law as it stood ("most desirable resolution") and then went fishing not only in USA law and jurisprudence but also left our boundaries and went to international sources to support their claims.
The SCOTUS essentially told us many people in the states found capital punishment in these cases as being abhorrent, then why does the legislature not abolish them? Seems to me the people were okay with that situation and it was the SCOTUS who were not happy with those laws and decided to dig up any clam they could to justify what THEY wanted.
Justice Scalia laments the dearth of courses and texts (obviously this is law school stuff here) on the proper construction and interpretation of statutory law. Why? Too often he says judges and legislators do a poor job of writing and reading statutory law. He cites a case known as Holy Trinity vs. The United States (Wow! The US is not afraid to take on anyone!) about a case where a church in NYC hired a preacher from England in violation of a federal statute that barred making contracts or agreements of employment with aliens located outside of the USA.2 The circuit court for the Southern district of New York upheld the fine levied but the SCOTUS reversed the decision. The SCOTUS admitted
That is to say the court admitted the fine was within the bounds of the law but decided the legislature really did not mean what it said. Note, this was not a question of constitutionality, just a matter of interpreting a law and the SCOTUS did not interpret, they rewrote and acted outside of their constitutional purview!
As I said I am in he middle of this read and I will keep you up to date on the book!
Please be patient with this blog, as it is likely to undergo formatting revisions after initial publication!
==============================================
Sources:
Updates:
I am not through it and not even through Justice Scalia's opening essay (the books consists of essays in response by other eminent legal scholars such as Lawrence Tribe) but one phrase sums up his belief in what is wrong with our judicial system.
According to Justice Scalia too many judges look at a case and then say
What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?
see note #1This is what Mark Levin refers to as judges foisting their "personal policy preferences" upon the public. In fact this is exactly what happened in the recent decision to prohibit the execution of those who committed their capital offense as a minor. The majority did not like the law as it stood ("most desirable resolution") and then went fishing not only in USA law and jurisprudence but also left our boundaries and went to international sources to support their claims.
The SCOTUS essentially told us many people in the states found capital punishment in these cases as being abhorrent, then why does the legislature not abolish them? Seems to me the people were okay with that situation and it was the SCOTUS who were not happy with those laws and decided to dig up any clam they could to justify what THEY wanted.
Justice Scalia laments the dearth of courses and texts (obviously this is law school stuff here) on the proper construction and interpretation of statutory law. Why? Too often he says judges and legislators do a poor job of writing and reading statutory law. He cites a case known as Holy Trinity vs. The United States (Wow! The US is not afraid to take on anyone!) about a case where a church in NYC hired a preacher from England in violation of a federal statute that barred making contracts or agreements of employment with aliens located outside of the USA.2 The circuit court for the Southern district of New York upheld the fine levied but the SCOTUS reversed the decision. The SCOTUS admitted
...although, within the letter, is not within the intention of the legislature, and therefore cannot be within the statute."
see note #3That is to say the court admitted the fine was within the bounds of the law but decided the legislature really did not mean what it said. Note, this was not a question of constitutionality, just a matter of interpreting a law and the SCOTUS did not interpret, they rewrote and acted outside of their constitutional purview!
As I said I am in he middle of this read and I will keep you up to date on the book!
Please be patient with this blog, as it is likely to undergo formatting revisions after initial publication!
==============================================
Sources:
- (Page 13, A Matter of Interpretation - Federal Courts and the Law Antonin Scalia edited by Amy Gutmann published by Princeton University Press copyright 1997)
- (Pages 18-19, A Matter of Interpretation - Federal Courts and the Law Antonin Scalia edited by Amy Gutmann published by Princeton University Press copyright 1997)
- (Pages 20, A Matter of Interpretation - Federal Courts and the Law Antonin Scalia edited by Amy Gutmann published by Princeton University Press copyright 1997)
Updates:
- 9:56 am April 23, 2005 Changed "...the SCOTUS who were happy with those laws" to "the SCOTUS who were not happy with those laws".
posted by Marcus Aurelius at 8:56 AM
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