Partially Fair

[woodchip]

So, just when you think the nations Supreme Court justices are above the fray:


"WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series co-sponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the court in support of women's rights that the justice embraces.
Two weeks earlier, she had voted in a medical screening case and taken the side promoted by the legal defense fund in its friend-of-the-court brief."

And just to show I am not being impartial:

"and recent outside activities by a conservative colleague, Justice Antonin Scalia, "

http://www.palmbeachpost.com/news/conte ... 90065.html

So the question here is how can a Justice be impartial when they have causes they are helping promote?

[fliptw]

You really can't.

But then again... you really can't have it any other way... Unless you want to seriously restrict the rights of the justices... which would ironically hypocritical.

The process where judges are appointed are largely political processes... either direct appointment by the Head of State, or thru the vetting process by the legislature.

You just sit back and up the resulant court after an appoinment is balanced up the middle.

At the end of the day, impartiality is a question of trust.

[Zuruck]

impartiality is impossible. to either side. dem or repub...

[Gooberman]

Many voted for Bush so that he would help appoint judges who are not impartial when it comes to Abortions.

[Drakona]

Impartiality comes from a dedication to apply the law as the writers and people intended it, regaurdless of whether you personally think it's right. One does not become impartial by completely cleansing oneself of political interests--that's impossible anyway. Rather, one ought to set those interests aside and enforce what the laws say, and interpret them as they were intended. In short, do justice as the laws say, not as you see it.

Thus, off-the-bench activites are irrelevant here. It's whether a judge is interpreting law irresponsibly to favor those interests while on the bench that matters. (Just like the DBB doesn't have a political slant enforced by moderators, because the moderators enforce the board rules rather than interpreting those board rules as they see fit from situation to situation to favor threads they personally agree with. That's setting personal opinion aside in order to do a judicial job.)

[Will Robinson]

Many voted for Bush so that he would help appoint judges who are not impartial when it comes to Abortions.

And many voted for Gore for the same reason.
Everyone wants a judge that agrees with them.

[Lothar]

*points to Drak's post*

yeah, what she said. "Impartial" doesn't mean "has no viewpoint" -- it means "willing to follow the law as it was written and intended, even if you disagree with it."

[Dedman]

But laws are purposefully written to be vague. There is always room for interpretation. That is the way our system of law works. The basic framework is written down with the expectation that future cases will help mold and shape it. This is one reason why judges canâ??t always â??follow the lawâ?

[Drakona]

Oh wow! Judges are so elite that they are allowed to make law based on their opinions alone, and they are not even accountable to the people or anything! Man, nobody else, not even the president can do that! The rest of us are supposed to go through that annoying process of getting bills proposed and voted on and stuff. Pshh, what a retard I was, thinking this was a democratic republic. All along, it was actually intended to be an oligarchy! My bad. I see it now.

[Will Robinson]

It's kind of both really.
They aren't supposed to make up law out of whole cloth, but their rulings, based on their interpretation of both the constitutionality of the law as it's written, and it's application by lower courts and/or prosecutors do end up setting the precedent that defines the law.

[Bold Deceiver]

But laws are purposefully written to be vague.

I don't think that's accurate. Laws are written to be as clear as possible, but legislators are human, and can't possibly anticipate every fact pattern that might require application of a specific law. So, although laws are sometimes written poorly, a law that is "vague" is actually constitutionally prohibited.

There is always room for interpretation. That is the way our system of law works. The basic framework is written down with the expectation that future cases will help mold and shape it. This is one reason why judges canâ??t always â??follow the lawâ?

[Drakona]

It's kind of both really.

Yeah. I know that, so perhaps I ought to have responded more gently--but the assertion that laws are intentionally left vague and that judges are expected to fill in the details struck me as so ludicrous I didn't want to respond seriously!

Seriously speaking, I know that specific cases clarify laws in cases that they don't explicity cover. But I do think that the moment when a judge acts on his or her own personal opinion about whether a law is right rather than a reading of the probable intention of the law is the moment that the judge becomes the ruler.

[Dedman]

I don't think that's accurate.

My law professor would dissagree with you on this point.

This is why laws are written with language such as "reasonal person" or "reasonable expectation". They frame the parameters of a situation or issue not define them explicitly. This is paint with a broad brush but it is true more often that not.

[woodchip]

nterpreting the law to decide on the legality of a specific case is one, but for that ruling to then be construed as the new defacto law of the land is quite another. The following is a example:

"In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.''5 The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''6 Therefore, ''n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''7

Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer."

So the problem I have here is a case concerning the legality of the possession of a sawed off shotgun somehome migrates into defineing the intent of the 2nd amendment and thus a unelected body of nine determines what is legal under the constitution. It would seem to me if there were no law regulating the possession of a modified firearm, then it would be the legislative body's job to write a law concerning such. If a law was written, then the Miller case need not ever of had to been heard by the U.S. Supreme Court.

On the opposite end of the spectrum, you have a bill banning same sex marriages, voted on and approved by the Calif. voters, yet you will have a court say that the law is unconstitutional. Shouldn't the constitutionality be determined when the bill is being written instead of having a judicial body come back later and say it (the law) is null and void?

[fliptw]

Shouldn't the constitutionality be determined when the bill is being written instead of having a judicial body come back later and say it (the law) is null and void?

You can't be called a criminal until you have been convicted of commiting a crime.

In the same sense, a law can't be unconsitional until it is found it has permited(or prohbited) an act that would contravine the consitution.

[woodchip]

Flip...so 9 judges can do this, but 50 senators and 500 congressmen can't? What don't I see here?

[Will Robinson]

What don't I see here?

You've apparantly forgotton that the judges are, at least, not influenced by their need for campaign donations and re-election.
Everyone has a personal opinions and principles but congressmen routinely sell theirs to the highest bidder.

[DCrazy]

Yeah, those 9 judges serve life terms. Those senators are transient, and the president can only serve two consecutive terms. There's the check and balance. It's when judges cross the line that we have a problem.

[fliptw]

when judges cross the line, we can(and have) impeached them.

[Bold Deceiver]

But laws are purposefully written to be vague.

I don't think that's accurate.

My law professor would dissagree with you on this point.

This is why laws are written with language such as "reasonal [sic] person" or "reasonable expectation". They frame the parameters of a situation or issue not define them explicitly. This is paint with a broad brush but it is true more often that not.

You better check again with your law professor. You have provided an example of how lawmakers attempt to take an otherwise vague law and make it enforceable.

The "reasonable person" standard is interposed to add specificity -- to differentiate between a subjective standard ["Gee, I didn't know that if I shot him in the skull, he'd just die like that"), and objective standard ("would a reasonable man believe that a gunshot to the head of the victim carried with it a high probability of death").

The "reasonable expectation" you refer to (e.g., a "reasonable expectation of privacy") is again, a means of providing an objective standard: more specific guidance to judge a specific set of facts. For instance, you cannot reasonably claim a sphere of privacy when you're out in public, because you're out in the open. A different expectation arises, however, in your own home.

Every set of facts is different. That's why one's behavior is often judged in the context of what a reasonable person would have done, when similarly situated.

After you've have had three years of law school, obtained a juris doctor, and passed a couple of bar examinations, check back with me. There's an entire doctrine of law devoted to vagueness and how it is used to _invalidate_ vague laws, Dedman. I'm not making this up. If you'd like, have your law professor log on and defend what you perceive to be his position on the subject. I'd love to talk with him or her.

BD

[Dedman]

Define "reasonable person" for me please.

A good example of what I am referring to are anti-porn or â??smutâ?

[Bold Deceiver]

Define "reasonable person" for me please.

1) A person; who 2) acts reasonably.

A good example of what I am referring to are anti-porn or â??smutâ?

[Dedman]

1) A person; who 2) acts reasonably.

Define Reasonable. You can't. It is a subjective term. It is in the eye of the beholder so to speak. Thus not specific.

Nope. A trial court ruling can't be cited as precedential authority. Needs to be ruled on by an appellate body, and then that opinion needs to be published before it can be cited.

I am not refering to a trial court so I guess we agree on this issue at least.

[Bold Deceiver]

Define Reasonable. You can't. It is a subjective term. It is in the eye of the beholder so to speak. Thus not specific.

sigh.

1. Capable of reasoning; rational: a reasonable person. 2. Governed by or being in accordance with reason or sound thinking: a reasonable solution to the problem. 3. Being within the bounds of common sense: arrive home at a reasonable hour. 4. Not excessive or extreme; fair: reasonable prices.

I think instead of looking up words for you (you're beginning to remind me of a small child who keeps asking "why"), I'll just let you conduct your own research on these penetrating, probing questions. Here's a link:

http://www.bartelby.com

Enjoy,

BD

[Dedman]

I was just asking you to defend your position. No need for name calling. You made the statement that the term â??reasonable personâ?

[Palzon]

I have nothing to add to Drakona's excellent first post.

Dedman, I understand where you are coming from with your quibble on what defines a "reasonable" person. However, Bold Deceiver is spot on.

I also work with the law for a living and have to make decisions based on statute all day long. What he's saying about "play in the wheel" is the key. Differnt people may assess a given situation differently, but the difference will generally be in the details and not the main substance of the point in question.

Still, to give credit to the worthiness of your querry... Much of how the law works in practice is counter intuitive. in other words, the way it plays out in practice is not something that could be immediately derived from the law itself. the practice is something that is developed over time after much experience. the practice is far different from an academic experience.

[Bold Deceiver]

What is reasonable to me may not be reasonable to you. That is the whole point.

Hmmm. I think we're operating on different definitions re objective versus subjective.

A "reasonable person" standard assumes that all reasonable people will act in a certain way, given a certain set of circumstances. That is a universal, defining standard, and it is inherently more specific than a subjective standard, just by virtue of the fact that two or more people can agree to it. It has universal application to any set of fact variables, because people can agree that a certain act (or omission) is either reasonable or unreasonable.

What you are describing, above, is a subjective standard, one that that has as many variations as there are people. An objective standard is not so pliable ... and that is _my_ point.

Now I agree that in practice, one finder of fact may determine that an act or omission is reasonable, while another finds the same act or omission unreasonable. That's why we have appellate courts. People, and judges of people, aren't perfect.

But we've drifted off-topic. You drew a response from me by stating, that "(p)art of the very job description of a Supreme Court Justice is to actually make law through rulings". Had you said, "interpret the law through rulings", which appears to be where we've wound up, I don't think we'd be having this conversation. Maybe we're talking about the same thing.

BD

[Dedman]

Maybe we are.