In case you missed it yesterday, the House voted 260-167 (largely along party lines) to pass a bill that, get this, would prohibit U.S. federal courts from hearing any cases involving the Pledge of Allegiance. Last time I checked, it was the Constitution, not the Congress which decides what authority the judicial branch holds. [UPDATE BY BRENDAN:Er, well, actually…] Regardless of your political leanings, I think anyone who values the protections our Founding Fathers laid out in the Constitution through the separation of powers should be appalled at this move to pander to the Religious Right.
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. IN ALL THE OTHER CASES BEFORE MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE.”
I’m not necessarily agreeing with the wisdom of this bill, mind you . . . I’m just pointing out where the Constitution explicitly allows for Congress to regulate the jurisdiction of the Supreme Court.
Last time I checked it was the Constitution, not the Congress which decides what authority the judicial branch holds.
Check again, David.
Article III, Section I: “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.”
Congress has the power, under the Constitution, to COMPLETELY DISBAND all federal courts except the Supreme Court, if it so chooses. Therefore (the logic goes) presumably it has the authority to limit their jurisdiction as well. And, as Joe Mama notes, the jurisdiction of the Supreme Court itself is subject to the Exceptions Clause. This is actually a controversial issue for various nuanced reasons that I won’t get into, but your post is certainly entirely wrong in its reasoning. Congress isn’t “ignoring” the Constitution, and it isn’t self-evident that this violates the Constitution.
Alas, the Constitution doesn’t necessarily say what any individual one of us wants it to say. It says what it says.
I don’t mean to sound snotty, but… there’s a reason Constitutional Law is an entire law-school course, not just a two-hour lecture… and it’s because these issues are complicated.
Of course, if the Hamdan case is any indication, SCOTUS (or at least the 5 non-conservative justices) is perfectly willing and able to simply ignore the clear language of Congress regulating its jurisdiction.
P.S. The “alas” in my above comment is, of course, sarcastic. THANK GOD the Constitution doesn’t just say what I, or you, or Andrew, or Mad Max, or George Bush, or John Kerry, or… whomever… wants it to say.
Now, whether it says whatever Antonin Scalia or Anthony Kennedy wants it to say… that’s a different question. :)
I would concur with Brendan, the Congress has the power to regulate jurisdiction in inferior federal courts. What this means, more or less, is that the Supreme Court would have original jurisdiction in such cases–or more likely in a case deciding if the inferior courts have jurisdiction or not based on the constitutionality of the house measure. Congress can’t really stop the Supreme Court from doing anything just like the Supreme Court can’t actually force the President to enforce a ruling it makes. See A. Jackson and J Marshal.
P.P.S. David, I apologize for inserting an update into your post — normally I wouldn’t do that — but because this is at the top of the homepage, and it contains a blatantly false statement of Constitutional Law, and I’m a law student, and this is my blog, and people don’t always notice when the author of a post is someone other than me… I felt the need to insert the update, lest anyone think I think what you wrote is true.
You can be forgiven for thinking it, since you haven’t taken two years of law school. But if I said something like that, I’d come off looking rather dumb.
Ultimately, yes, the courts decide controversies revolving around their own jurisdiction. But if your implication is that it’s “a case for the courts” and therefore this law is wrong, that just doesn’t follow. The law bans consideration of a substantive issue; it doesn’t purport to prevent the courts from considering whether it is itself constitutional! If the courts decide that this law is unconstitutional, then it will be abrogated, and we’ll go on with our lives. But that doesn’t mean Congress was necessarily wrong to pass the law; they might have legitimately and reasonably believed that the courts would interpret the Constitution in a different way. That’s just part of the push-and-pull of the checks & balances and balance of power that you’re so fond of.
By the way, for the record, I think the law is dumb. And I’m not expressing an opinion on any legitimate constitutional issues that might be raised against it. I’m merely saying that David is wrong, not necessarily that Congress is right.
Also not to sound snotty, but I think the more relevant section of the Constitution to this particular bill is Art. III, Sec. 2 (dealing with “exceptions” and “regulations” that Congress may make regarding SCOTUS’ jurisdiction), not Sec. 1 (setting forth Congress’ power to establish/disband lower federal courts).
I mentioned your 12:44 comment, and the Exceptions Clause, in my 12:52 comment, Joe. :) Admittedly, I think I added the reference while editing my comment a few minutes after initially posting it, so you may not have seen that. Regardless, I think both clauses are relevant, because Congress is purporting to remove jurisdiction over this issue from all federal courts, including the Supreme Court but also including the lower courts… right?
Yep. I just read the article more closely, and yes, the bill does in fact seek to remove jurisdiction from all federal courts, not just the Supreme Court (I thought David’s post mentioned only the latter).
David’s post originally said “would prohibit U.S. Court from hearing.” I believe he meant to say “U.S. Courts” but made a typo. I changed it to “U.S. federal courts” for the sake of clarity.
Brendan I have no problem with you updating this post, and I new it wouldn’t be quite as simple as it seemed, hence the ? at the end of the title. Its entirely possible that Congress DOES have the power to do this (i think its bad if they do) but why are they doing this at all if it has no teeth whatsoever? Either they think it applies to the Supreme Court or they know that these kind of cases can STILL be heard by the Court and what they are doing is as i said above, purely a move to ingratiate themselves to the Religious Right.
This quote, frankly says it all:
“We’re creating a fence. The fence goes around the federal judiciary. We’re doing that because we don’t trust them,” said Missouri Rep. Todd Akin.”
The supreme arrogance of Rep. Akin and others is what gets to me. And don’t even get me started on the whole “activist judge” term. Why don’t they call it what it really is? “Judge’s who are doing their job but I don’t like it because I want them to rule for me and not against me”.
I totally agreed with you until Brendan and Joe pwned my candy ass with their legal kung-fu. I agree its a big waste of Congress’ time, but I myself was COMPLETELY unaware of those sections of Article III.
Keep one thing in mind though, from a less legal aspect, is that the judiciary IS a branch of government too, with checks needed for it as well. So many people forget (not saying you do), that the SC is not the end-all-be-all.
Even where Congress withdraws inferior court jurisdiction or Supreme Court appellate jurisdiction, there is absolutely NOTHING stopping a plaintiff seeking relief on a Flag-First Amendment right in a state court, which, regardless of Congressional jurisdiction stripping, is still bound to uphold Federal Constitutional rights under the Supremacy Clause.
So what if Congress wants to reign in the spiraling body of precedent in the inferior judiciary ? Does an inferior court proclamation a Constituional right make ? No.
Why do liberals only love separation of powers and inter-branch interplay when it involves shoring up the Superlative Power of the Supreme Court as the Dominant Branch of Government ? Liberals - here are the two Constitutional Amendments you need to work on. (1) on the federal level you need to change Art. I, II and III so that the Federal Judiciary the Dominus “Council of Review” the framers rejected, the great Constitutional Law-MAKER, with the secondary branches occupied by the two “Pages” or Clerks - Congress (who has the privilege of thinking up good laws for the Court’s consideration) and the President (who conducts all manner of foriegn policy according to former Antitrust scholars). (2) Then repeal the 10th Amendment and all other provisions recognizing Separate Soverign State Governments - make the states simply administrative enclaves of federal policy.
This amendments are likely unnecessary however given the work of the Court since the 1940s - namely, Commerce Clause expansion of federal power (amendment suggestion 2 above) and Substantive Due Process and Fundamental Fairness as a basis for Federal judicial constitutional lawmaking (amendment suggestion 1).
“The supreme arrogance of Rep. Akin and others is what gets to me.”
Enter the most important difference between the legislative and judicial branches: when someone like Rep. Akin gets to you, you have a chance to vote him out every two years by trying to persuade his constituents that he’s as bad as you say. When a federal judge demonstrates similar arrogance, you can do very little about it except wait until (s)he dies, or perhaps file an appeal (unless said judge’s actions fall within that very narrow category of behavior that warrants removal from the bench).
So, Brendan inserted a piece of higher post into the inferior post. Hmmmm. could have just made a comment on the thread. Good thing IT has jurisdiction.
David, although there are some instances in which complaints about judicial activism are indeed disguised complaints about the merits — indeed, that is probably the case most of the time in regular public discourse (as opposed to intellectual and/or legal discourse) — it is not true that the term “activist judge” is itself inherently meaningless, or complaints about it inherently wrong. There is such a thing as “judicial activism,” and there is a legitimate argument (indeed, a correct argument, in my view) that it’s generally a bad thing, with rare exceptions like Brown v. Board of Education. And when judicial activism is bad, it’s bad regardless of who it’s benefitting, regardless of whether the case name is Roe v. Wade or Bush v. Gore.
Unfortunately, it’s rare that politicians, pundits or voters are consistent in their condemnations of judicial activism (the situation is somewhat different among law nerds… somewhat, sometimes), which leads to the sort of cynicism that you are displaying. But I just want to be sure you aren’t contending that the whole concept of judicial activism is a nullity. It is absolutely true that judges sometimes exceed their authority and cross the fuzzy line between interpeting the law and making or changing the law… and that’s just as much of an affront to our system of government as the sort of usurpations of power by the executive that you love to criticize. I say “just as much” because, on the one hand, even an activist judge still has less power than an overly aggressive executive, but on the other hand, Joe Mama is absolutely correct: we can vote out an aggressive executive or an arrogant legislator, but we can’t do a damn thing about a bad judge.
That’s as it should be, mind you — electing judges is a terrible idea — but it makes it all the more important that judges exercise restraint. I.e., it makes “judicial activism” a real, legitimate problem.
why are they doing this at all if it has no teeth whatsoever? Either they think it applies to the Supreme Court or they know that these kind of cases can STILL be heard by the Court and what they are doing is as i said above, purely a move to ingratiate themselves to the Religious Right
That’s a false either/or proposition. In between “they think it applies” and “they know [it doesn’t apply]” lies the following possibilities:
* They aren’t sure whether it applies, but they hope it will.
* They think it doesn’t apply, but they hope they’re wrong.
* They think it SHOULD apply, and although they strongly suspect the Supreme Court will overrule them, as a coequal branch of government with their own stake and role in the debate over constitutional interpretation (yes, all three branches do have a role, it’s not just the Supreme Court’s job), they are making a strong statement of their position and putting the ball in SCOTUS’s court.
Those are valid possibilities, as are the two you mentioned. (Well, actually, “they know it doesn’t apply” is pretty unlikely… how could Congress KNOW what the Supreme Court is going to do, when the law is unsettled and unclear?)
There are also some other cynical possibilities that you didn’t mention. Like for example, “They actually don’t think this legislation is a good idea, but they’re voting for it because they assume it will get struck down.” This is a very bad, non-respectable way for Congress to go about its business. (See, e.g., portions of the McCain-Feingold Act.) Not saying it’s happening here, just saying it’s another of the myriad ways Congress can potentially think about a piece of legislation that raises constitutional issues.
I’m sure there are many others. There certainly aren’t only two, as you suggested.
The truth is probably some mixture of two or three different possibilities… for example: they aren’t sure how the Court will rule, they hope it rules in their favor, and they think that’s a valid possibility, but even if they ultimately lose, at least they will have curried favor with the Religious Right.
Wow uscroger, i’m impressed, you must be a pretty amazing person to have never ever made a single mistake in your life. Tell me how do you beat off all the press and publicity that goes along with living a spotless life?
Indeed Brendan. Scalia, for example, is a fine example of an activist judge. I believe he was actually quoted some years ago as saying something akin to: for years I thought about deciding cases on the merits, then I realized all you need is five votes. (this was said while he was on the court).
Then again, one could conceivably argue Marshal was an activist Judge too.
In this case, to me, this seems like election year pandering.
Umm, Scalia is still “on the court”… did you mean Rehnquist? Either way, I’d love to see a source for the quote… sounds “too good to be true,” if you will, kinda like Wolfowitz’s quote about how the Iraq war was for oil.
I’m fairly sure I meant Scalia, I was differentiating Scalia before he was a member of The Court versus as a member of the Court. Regardless I will see if I can hunt down proper sourcing. He did say in an opinion once that actual innocence is irreverent when looking at a death penalty appeal. (the lawyers here will point out the fact that he is actually right about that one, appeals courts do not actually concern themselves with facts–not actually being sarcastic, trial courts find facts appeals courts argue about process.)
July 20th, 2006 at 12:36:41 pm
Eh? Balance of Power? Checks and Balances? Dumb, dumb, dumb.
July 20th, 2006 at 12:44:33 pm
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. IN ALL THE OTHER CASES BEFORE MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE.”
U.S. Constitution, Art. III, Sec. 2
July 20th, 2006 at 12:48:20 pm
I’m not necessarily agreeing with the wisdom of this bill, mind you . . . I’m just pointing out where the Constitution explicitly allows for Congress to regulate the jurisdiction of the Supreme Court.
July 20th, 2006 at 12:52:37 pm
Last time I checked it was the Constitution, not the Congress which decides what authority the judicial branch holds.
Check again, David.
Article III, Section I: “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.”
Congress has the power, under the Constitution, to COMPLETELY DISBAND all federal courts except the Supreme Court, if it so chooses. Therefore (the logic goes) presumably it has the authority to limit their jurisdiction as well. And, as Joe Mama notes, the jurisdiction of the Supreme Court itself is subject to the Exceptions Clause. This is actually a controversial issue for various nuanced reasons that I won’t get into, but your post is certainly entirely wrong in its reasoning. Congress isn’t “ignoring” the Constitution, and it isn’t self-evident that this violates the Constitution.
Alas, the Constitution doesn’t necessarily say what any individual one of us wants it to say. It says what it says.
I don’t mean to sound snotty, but… there’s a reason Constitutional Law is an entire law-school course, not just a two-hour lecture… and it’s because these issues are complicated.
July 20th, 2006 at 12:53:45 pm
Of course, if the Hamdan case is any indication, SCOTUS (or at least the 5 non-conservative justices) is perfectly willing and able to simply ignore the clear language of Congress regulating its jurisdiction.
July 20th, 2006 at 12:59:54 pm
P.S. The “alas” in my above comment is, of course, sarcastic. THANK GOD the Constitution doesn’t just say what I, or you, or Andrew, or Mad Max, or George Bush, or John Kerry, or… whomever… wants it to say.
Now, whether it says whatever Antonin Scalia or Anthony Kennedy wants it to say… that’s a different question. :)
July 20th, 2006 at 1:02:29 pm
I would concur with Brendan, the Congress has the power to regulate jurisdiction in inferior federal courts. What this means, more or less, is that the Supreme Court would have original jurisdiction in such cases–or more likely in a case deciding if the inferior courts have jurisdiction or not based on the constitutionality of the house measure. Congress can’t really stop the Supreme Court from doing anything just like the Supreme Court can’t actually force the President to enforce a ruling it makes. See A. Jackson and J Marshal.
July 20th, 2006 at 1:04:35 pm
P.P.S. David, I apologize for inserting an update into your post — normally I wouldn’t do that — but because this is at the top of the homepage, and it contains a blatantly false statement of Constitutional Law, and I’m a law student, and this is my blog, and people don’t always notice when the author of a post is someone other than me… I felt the need to insert the update, lest anyone think I think what you wrote is true.
You can be forgiven for thinking it, since you haven’t taken two years of law school. But if I said something like that, I’d come off looking rather dumb.
July 20th, 2006 at 1:07:36 pm
Sounds like a case for the courts.
July 20th, 2006 at 1:14:08 pm
dcl-
Ah yes. Presidential hubris resulting in “The Trail of Tears.” Good times.
July 20th, 2006 at 1:25:54 pm
Sounds like a case for the courts.
Ultimately, yes, the courts decide controversies revolving around their own jurisdiction. But if your implication is that it’s “a case for the courts” and therefore this law is wrong, that just doesn’t follow. The law bans consideration of a substantive issue; it doesn’t purport to prevent the courts from considering whether it is itself constitutional! If the courts decide that this law is unconstitutional, then it will be abrogated, and we’ll go on with our lives. But that doesn’t mean Congress was necessarily wrong to pass the law; they might have legitimately and reasonably believed that the courts would interpret the Constitution in a different way. That’s just part of the push-and-pull of the checks & balances and balance of power that you’re so fond of.
By the way, for the record, I think the law is dumb. And I’m not expressing an opinion on any legitimate constitutional issues that might be raised against it. I’m merely saying that David is wrong, not necessarily that Congress is right.
July 20th, 2006 at 1:26:07 pm
Also not to sound snotty, but I think the more relevant section of the Constitution to this particular bill is Art. III, Sec. 2 (dealing with “exceptions” and “regulations” that Congress may make regarding SCOTUS’ jurisdiction), not Sec. 1 (setting forth Congress’ power to establish/disband lower federal courts).
See my post @ 12:44 PM :-)
July 20th, 2006 at 1:27:59 pm
I mentioned your 12:44 comment, and the Exceptions Clause, in my 12:52 comment, Joe. :) Admittedly, I think I added the reference while editing my comment a few minutes after initially posting it, so you may not have seen that. Regardless, I think both clauses are relevant, because Congress is purporting to remove jurisdiction over this issue from all federal courts, including the Supreme Court but also including the lower courts… right?
July 20th, 2006 at 1:31:54 pm
Brendan,
Yep. I just read the article more closely, and yes, the bill does in fact seek to remove jurisdiction from all federal courts, not just the Supreme Court (I thought David’s post mentioned only the latter).
July 20th, 2006 at 1:32:36 pm
David’s post originally said “would prohibit U.S. Court from hearing.” I believe he meant to say “U.S. Courts” but made a typo. I changed it to “U.S. federal courts” for the sake of clarity.
July 20th, 2006 at 1:33:10 pm
Brendan-
I was making a joke.
July 20th, 2006 at 1:57:05 pm
Brendan I have no problem with you updating this post, and I new it wouldn’t be quite as simple as it seemed, hence the ? at the end of the title. Its entirely possible that Congress DOES have the power to do this (i think its bad if they do) but why are they doing this at all if it has no teeth whatsoever? Either they think it applies to the Supreme Court or they know that these kind of cases can STILL be heard by the Court and what they are doing is as i said above, purely a move to ingratiate themselves to the Religious Right.
This quote, frankly says it all:
“We’re creating a fence. The fence goes around the federal judiciary. We’re doing that because we don’t trust them,” said Missouri Rep. Todd Akin.”
The supreme arrogance of Rep. Akin and others is what gets to me. And don’t even get me started on the whole “activist judge” term. Why don’t they call it what it really is? “Judge’s who are doing their job but I don’t like it because I want them to rule for me and not against me”.
July 20th, 2006 at 2:05:12 pm
Holy Cow! Mass evacuations in St. Louis due to massive power failures…
http://www.msnbc.msn.com/id/13954663/
…WTF???
July 20th, 2006 at 2:14:16 pm
David -
I totally agreed with you until Brendan and Joe pwned my candy ass with their legal kung-fu. I agree its a big waste of Congress’ time, but I myself was COMPLETELY unaware of those sections of Article III.
Keep one thing in mind though, from a less legal aspect, is that the judiciary IS a branch of government too, with checks needed for it as well. So many people forget (not saying you do), that the SC is not the end-all-be-all.
July 20th, 2006 at 2:27:18 pm
Even where Congress withdraws inferior court jurisdiction or Supreme Court appellate jurisdiction, there is absolutely NOTHING stopping a plaintiff seeking relief on a Flag-First Amendment right in a state court, which, regardless of Congressional jurisdiction stripping, is still bound to uphold Federal Constitutional rights under the Supremacy Clause.
So what if Congress wants to reign in the spiraling body of precedent in the inferior judiciary ? Does an inferior court proclamation a Constituional right make ? No.
Why do liberals only love separation of powers and inter-branch interplay when it involves shoring up the Superlative Power of the Supreme Court as the Dominant Branch of Government ? Liberals - here are the two Constitutional Amendments you need to work on. (1) on the federal level you need to change Art. I, II and III so that the Federal Judiciary the Dominus “Council of Review” the framers rejected, the great Constitutional Law-MAKER, with the secondary branches occupied by the two “Pages” or Clerks - Congress (who has the privilege of thinking up good laws for the Court’s consideration) and the President (who conducts all manner of foriegn policy according to former Antitrust scholars). (2) Then repeal the 10th Amendment and all other provisions recognizing Separate Soverign State Governments - make the states simply administrative enclaves of federal policy.
This amendments are likely unnecessary however given the work of the Court since the 1940s - namely, Commerce Clause expansion of federal power (amendment suggestion 2 above) and Substantive Due Process and Fundamental Fairness as a basis for Federal judicial constitutional lawmaking (amendment suggestion 1).
ok back to wurk.
July 20th, 2006 at 2:59:11 pm
“The supreme arrogance of Rep. Akin and others is what gets to me.”
Enter the most important difference between the legislative and judicial branches: when someone like Rep. Akin gets to you, you have a chance to vote him out every two years by trying to persuade his constituents that he’s as bad as you say. When a federal judge demonstrates similar arrogance, you can do very little about it except wait until (s)he dies, or perhaps file an appeal (unless said judge’s actions fall within that very narrow category of behavior that warrants removal from the bench).
July 20th, 2006 at 3:19:46 pm
So, Brendan inserted a piece of higher post into the inferior post. Hmmmm. could have just made a comment on the thread. Good thing IT has jurisdiction.
July 20th, 2006 at 3:22:52 pm
David, although there are some instances in which complaints about judicial activism are indeed disguised complaints about the merits — indeed, that is probably the case most of the time in regular public discourse (as opposed to intellectual and/or legal discourse) — it is not true that the term “activist judge” is itself inherently meaningless, or complaints about it inherently wrong. There is such a thing as “judicial activism,” and there is a legitimate argument (indeed, a correct argument, in my view) that it’s generally a bad thing, with rare exceptions like Brown v. Board of Education. And when judicial activism is bad, it’s bad regardless of who it’s benefitting, regardless of whether the case name is Roe v. Wade or Bush v. Gore.
Unfortunately, it’s rare that politicians, pundits or voters are consistent in their condemnations of judicial activism (the situation is somewhat different among law nerds… somewhat, sometimes), which leads to the sort of cynicism that you are displaying. But I just want to be sure you aren’t contending that the whole concept of judicial activism is a nullity. It is absolutely true that judges sometimes exceed their authority and cross the fuzzy line between interpeting the law and making or changing the law… and that’s just as much of an affront to our system of government as the sort of usurpations of power by the executive that you love to criticize. I say “just as much” because, on the one hand, even an activist judge still has less power than an overly aggressive executive, but on the other hand, Joe Mama is absolutely correct: we can vote out an aggressive executive or an arrogant legislator, but we can’t do a damn thing about a bad judge.
That’s as it should be, mind you — electing judges is a terrible idea — but it makes it all the more important that judges exercise restraint. I.e., it makes “judicial activism” a real, legitimate problem.
July 20th, 2006 at 3:31:30 pm
why are they doing this at all if it has no teeth whatsoever? Either they think it applies to the Supreme Court or they know that these kind of cases can STILL be heard by the Court and what they are doing is as i said above, purely a move to ingratiate themselves to the Religious Right
That’s a false either/or proposition. In between “they think it applies” and “they know [it doesn’t apply]” lies the following possibilities:
* They aren’t sure whether it applies, but they hope it will.
* They think it doesn’t apply, but they hope they’re wrong.
* They think it SHOULD apply, and although they strongly suspect the Supreme Court will overrule them, as a coequal branch of government with their own stake and role in the debate over constitutional interpretation (yes, all three branches do have a role, it’s not just the Supreme Court’s job), they are making a strong statement of their position and putting the ball in SCOTUS’s court.
Those are valid possibilities, as are the two you mentioned. (Well, actually, “they know it doesn’t apply” is pretty unlikely… how could Congress KNOW what the Supreme Court is going to do, when the law is unsettled and unclear?)
There are also some other cynical possibilities that you didn’t mention. Like for example, “They actually don’t think this legislation is a good idea, but they’re voting for it because they assume it will get struck down.” This is a very bad, non-respectable way for Congress to go about its business. (See, e.g., portions of the McCain-Feingold Act.) Not saying it’s happening here, just saying it’s another of the myriad ways Congress can potentially think about a piece of legislation that raises constitutional issues.
I’m sure there are many others. There certainly aren’t only two, as you suggested.
The truth is probably some mixture of two or three different possibilities… for example: they aren’t sure how the Court will rule, they hope it rules in their favor, and they think that’s a valid possibility, but even if they ultimately lose, at least they will have curried favor with the Religious Right.
July 20th, 2006 at 5:05:46 pm
Wow uscroger, i’m impressed, you must be a pretty amazing person to have never ever made a single mistake in your life. Tell me how do you beat off all the press and publicity that goes along with living a spotless life?
July 20th, 2006 at 7:46:44 pm
Indeed Brendan. Scalia, for example, is a fine example of an activist judge. I believe he was actually quoted some years ago as saying something akin to: for years I thought about deciding cases on the merits, then I realized all you need is five votes. (this was said while he was on the court).
Then again, one could conceivably argue Marshal was an activist Judge too.
In this case, to me, this seems like election year pandering.
July 20th, 2006 at 8:58:26 pm
Umm, Scalia is still “on the court”… did you mean Rehnquist? Either way, I’d love to see a source for the quote… sounds “too good to be true,” if you will, kinda like Wolfowitz’s quote about how the Iraq war was for oil.
July 21st, 2006 at 6:31:58 am
Actually, David. I was defending you from Brendan’s cutting into your post where he could have just pointed things out in one of his so many comments.
July 21st, 2006 at 6:56:35 am
I’m fairly sure I meant Scalia, I was differentiating Scalia before he was a member of The Court versus as a member of the Court. Regardless I will see if I can hunt down proper sourcing. He did say in an opinion once that actual innocence is irreverent when looking at a death penalty appeal. (the lawyers here will point out the fact that he is actually right about that one, appeals courts do not actually concern themselves with facts–not actually being sarcastic, trial courts find facts appeals courts argue about process.)
July 21st, 2006 at 12:49:49 pm
Forgive me then, i took your reference to my post as being inferior literally.
July 21st, 2006 at 12:50:41 pm
Regardless, i think Brendan did the write thing by linking to a clarification, as it changes the nature of the post.
July 21st, 2006 at 1:46:43 pm
Uh, were you asleep for….all of federal courts?
July 22nd, 2006 at 11:37:00 am
so? what new