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patteeu
07-05-2006, 12:37 PM
In your opinion has the Supreme Court led us down the road towards an Imperial Judiciary?

They seem to feel they are above the law.

They seem to feel they are above being restrained by Congressional declarations of jurisdiction. (See the Hamdan decision by Justice Stevens, section II (http://www.law.cornell.edu/supct/html/05-184.ZO.html) and Justice Scalia's dissent (http://www.law.cornell.edu/supct/html/05-184.ZD.html))

They seem to feel the courts should serve the Justices' personal political interests over following the rule of law in making decisions.

They seem to feel that only very specific prohibitions in the Constitution limit their power (and half the time they invent ways to find wiggle room in those cases too).

So what say you? Are you concerned?

Is it just as bad when the SCOTUS or the Congress exceed their authority as when our so-called Imperial President does it or is it just bad when it's Bush?

oldandslow
07-05-2006, 01:37 PM
Nope...

The SCOTUS has no military...

for example see SCOTUS decision concerning the Cherokee Land Case and then view what Andrew Jackson/Martin Van Buren did.

The executive branch has the hammer...the judicial branch does not.

That is why one should always be more concerned about the executive branch. There can be no such thing as the "imperial SCOTUS."

patteeu
07-05-2006, 01:43 PM
Nope...

The SCOTUS has no military...

for example see SCOTUS decision concerning the Cherokee Land Case and then view what Andrew Jackson/Martin Van Buren did.

The executive branch has the hammer...the judicial branch does not.

That is why one should always be more concerned about the executive branch. There can be no such thing as the "imperial SCOTUS."

Do you think it's OK for the SCOTUS to exceed their authority and ignore Congress? Your point is a decent one, but I think it's important for the integrity of our Constitutional system for all three branches to respond to the built in checks and balances.

oldandslow
07-05-2006, 01:46 PM
I never said I thought that the SCOTUS should exceed its authority.

You asked if I believed there could ever be an "imperial court." I gave you my reason as to why I do not believe that there could be.

However, if you want to argue the concept of judicial review, we can rehash Marbury v Madison.

the Talking Can
07-05-2006, 01:49 PM
stop watching that Hannity show...it's rotting your brain...the idea that you suddenly care about "the integrity of our Constituitonal system" is laughable...you've been Bush's personal toilet paper...

patteeu
07-05-2006, 01:52 PM
I never said I thought that the SCOTUS should exceed its authority.

You asked if I believed there could ever be an "imperial court." I gave you my reason as to why I do not believe that there could be.

However, if you want to argue the concept of judicial review, we can rehash Marbury v Madison.

I acknowledged your response and asked you a follow-up. Marbury v. Madison (aside from being self-created to begin with) doesn't give the SCOTUS authority to conjure jurisdiction where none exists.

patteeu
07-05-2006, 01:53 PM
stop watching that Hannity show...it's rotting your brain...the idea that you suddenly care about "the integrity of our Constituitonal system" is laughable...you've been Bush's personal toilet paper...

I don't have cable or satellite so I'm afraid I don't see too much of Hannity. I do hear Colmes from time to time on the radio at night though. It must be something else that's rotting my brain I guess.

BIG_DADDY
07-05-2006, 01:57 PM
stop watching that Hannity show...it's rotting your brain...the idea that you suddenly care about "the integrity of our Constituitonal system" is laughable...you've been Bush's personal toilet paper...

Speaking of toilet paper and needing some. Do you just pull this stuff out of your ass or what? I guess everyone that doesn't bitch daily about GW's every move wants to step on the constitution now. Whatever.

oldandslow
07-05-2006, 02:00 PM
1. Congress cannot pass a law that is blatently unconstitutional and have it stand up in court - i.e. the denial of habeas corpus. That lies at the very heart of judicial review.

2. This case was pending at the time of the Dec 2005 law. Therefore, at least in this case, ex post facto would kick in.

patteeu
07-05-2006, 02:26 PM
1. Congress cannot pass a law that is blatently unconstitutional and have it stand up in court - i.e. the denial of habeas corpus. That lies at the very heart of judicial review.

True (at least up to the point of the "i.e."), but Justice Stevens doesn't make that argument for asserting jurisdiction here and gives every indication that he recognizes Congress' power to withhold jurisdiction in a case like this if they do so with the right magic words.


2. This case was pending at the time of the Dec 2005 law. Therefore, at least in this case, ex post facto would kick in.

Ex post facto doesn't really have anything to do with the Hamdan decision. Ex post facto is when you try to prosecute someone for something that was legal at the time he/she did it. None of the justices mention ex post facto and both Stevens and Scalia refer to prior situations where jurisdiction has been stripped even while cases have been pending.

oldandslow
07-05-2006, 03:37 PM
True (at least up to the point of the "i.e."), but Justice Stevens doesn't make that argument for asserting jurisdiction here and gives every indication that he recognizes Congress' power to withhold jurisdiction in a case like this if they do so with the right magic words.

Ex post facto doesn't really have anything to do with the Hamdan decision. Ex post facto is when you try to prosecute someone for something that was legal at the time he/she did it. None of the justices mention ex post facto and both Stevens and Scalia refer to prior situations where jurisdiction has been stripped even while cases have been pending.

Patteeu - He certainly DOES make the jurisdiction argument...

Subsection (e) of §1005, which is entitled “Judicial Review of Detention of Enemy Combatants,” supplies the basis for the Government’s jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:

(I have left out a major chunk - you can read it at the web site you furnished)

He concludes with...

We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut the Government’s theory—at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.


The right decision was made. The rule is that cases that are pending are NOT subject to statutes made afterward. For example...even tho the recent bankruptcy laws changed the rules of bankruptcy, it did not impact those cases that were already filed, even tho they had yet to be adjudicated at the deadline.

Furthermore, that you and I are making reasoned arguments both for and against this SCOTUS decision really does undermine your original thesis - i.e. that we have a "imperial SCOTUS." Rational people can view this particular decision differently.

listopencil
07-05-2006, 05:30 PM
Bump.

patteeu
07-05-2006, 05:43 PM
Patteeu - He certainly DOES make the jurisdiction argument...

Subsection (e) of §1005, which is entitled “Judicial Review of Detention of Enemy Combatants,” supplies the basis for the Government’s jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:

(I have left out a major chunk - you can read it at the web site you furnished)

He concludes with...

We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut the Government’s theory—at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.

This is a semantic point, but what he does is raise the specter of an argument and then moves on without analyzing it's validity because, in his opinion, the statute doesn't attempt to strip the court of jurisdiction. That's different than actually making the argument and basing his decision on it. The bottom line here is that the constitutional issue was not decided here.

The right decision was made. The rule is that cases that are pending are NOT subject to statutes made afterward. For example...even tho the recent bankruptcy laws changed the rules of bankruptcy, it did not impact those cases that were already filed, even tho they had yet to be adjudicated at the deadline.

3 of 8 SCOTUS justices (and presumably a fourth) disagree with you. Justice Scalia's dissent presents an argument for the alternative interpretation of the statute. Without reading the precedents offered by both sides to support their opinions, I can't offer an informed opinion about which side got it right, but I suspect I'd agree with Scalia based on past performance. ;)

Furthermore, that you and I are making reasoned arguments both for and against this SCOTUS decision really does undermine your original thesis - i.e. that we have a "imperial SCOTUS." Rational people can view this particular decision differently.

Well this thread was somewhat TIC (it is actually a twin of a thread Vlad/Logical created a while back regarding the "Imperial Presidency"). I'm not one to get bent out of shape when one branch or another exceeds their authority unless it is an egregious abuse. I figure that balance will be maintained in the long run because of the checks we have in the system.

As we can see with this highly fractured decision, any of the branches of government might have overstepped their bounds in this affair but none of them have so clearly done so that it's an easy case to decide. Nonetheless, the issues of detainee treatment raised by this case are sometimes used by critics of the president to accuse him of being an "Imperial President" despite the fact that 4 out of 9 SCOTUS justices have supported his view either in this decision or in the earlier Appeals Court decision.

Besides, I included the patented jAZ question mark in my title so I've got a defense from being accused of even having an original thesis. ROFL

Seriously though, I agree that this is the kind of issue that reasonable people can disagree on, as is the Geneva Convention issue in the Hamdan case, as are most of the so-called abuses of this President.

go bowe
07-05-2006, 06:52 PM
bush is da debil...