Anyone see Scalia and Breyer on C-Span? I have a question.

[Carolab]

The discussion revolved around the question of whether or not decisions from foreign courts ought to inform the decisions of the SCOTUS. During the Q&A, a gentleman asked whether it is appropriate to reference decisions from other courts that do not operate in a democracy. In giving his answer, Justice Breyer made the statement that in the end judicial decisions ought to flow from "the people", in the sense that although justices are appointed, they are appointed by elected officials, officials which are elected by the people. And Scalia agreed that he agreed with this. If that is the case, how is it that Scalia can justify his decision in Bush v. Gore, which effectively supplanted the decision of the people for the decision of the court? His justification to stop the recount, that standards being applied were separate and unequal, seems highly contradictory to the notion that it was the legislature that ultimately decided those standards, and the legislature was elected by the people. In addition, the laws which govern elections in the first place, it could be similarly argued, are separate and inequal, in that different machines and standards of voting applied in the first place. In the case of this election, is it not true that the election was conducted under laws that were separate and unequal state-to-state, and in fact the laws themselves were applied in a way that was separate and unequal in certain precincts of certain states? Therefore, how can the law flow from the people, when the justices are appointed by officials who have not been fairly and equally elected by the people?

[Erika]

1. Good question.

I missed that part. I was highly interested in the affects of international law on U.S. law and how the English/Christian laws must be considered in constituitonal questions today.

I thought about how Muslim law might/must be considered in their new constitution and government. The Islamic law, in a strict interpretaion as in Saudia Arabia, limits women's rights and role as chattel. Is this what we are losing lives for?

[Erika]

2. I was also very interested in

both of them saying that no justice would consider their partisan politics in a court decision. O.K.

[Carolab]

3. Yes, that caught my attention as well.

And I noticed the camera went to Scalia at that point, although Breyer was speaking. Scalia was nodding, as I recall, in assent.

[OrwellwasRight]

4. First of all, know that Scalia is nothing but an opportunist.

He claims to be informed by originalist thinking, but he abandons it whenever he pleases (e.g., the statement you heard him say, every takings case he has ever decided).

Moreover, regardless of what any of them say about how government flows from the people (which I'm sure they all belive "in theory"), none of them would ever give up their right to use their own discretion and prerogative. Basically, that's what they were put there for, and that is what judges value more than anything (in my experience).

As to the comments about Islamic law: rarely would decisions based on Islamic law be seen as even persuasive authority in the US. Mostly they look to other "common law" nations (nations descended from the UK). They might bring in ICC and ICJ opinions because we are a member of the UN and signed the UN charter as well as a bunch of other treaties. Thus, decisions interpreting these treaties hold some persuasive value. But it is unlikely anyone on the current court would try use use a decision from Iran, say, as a leading precedent.

[emcguffie]

10. Didn't Scalia said gov flowed from God?

Seems to me I read that somewhere. I'm not a lawyer, so this is a little bit over my head, but in a speech somewhere, it seems he used this government flowing from God thing to justify capital punishment.

[wtmusic]

5. I still don't understand how BvG ended up in the Supreme Court

What the hell was constitutional about that case? :shrug:

[Carolab]

6. They based it on "equal rights". That's the point.

Equal rights across state lines? You'd have to argue that since each state is different, indeed each county varies, in its election laws/regulations, nothing is "equal" across state lines. As Jesse Jackson, Jr. has argued, there is no federal right to vote (it's granted by each state), and there are no federal standards. Yet, they decided the case on a federal, constitutional basis of "equal rights". My argument is: there were no equal rights in an election that varies from state to state, county to county, to begin with.

[wtmusic]

7. And a great argument it is

almost to the point that it is no argument at all, but a de facto conclusion made from the evidence at hand.

I wonder if the transcript of that case is available somewhere. Truly one of the weakest moments in Supreme Court history.

[troubleinwinter]

8. Vincent Bugliosi (Charles Manson prosecutor, author of Helter Skelter)

wrote a book The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President on that Supreme Court decision. He says those justices are treasonous and should be IMPEACHED.

"From Publishers Weekly
On December 12th, 2000, in a 5-4 decision, the U. S. Supreme Court put an end to the recounting of presidential votes in Florida, thus assuring that George W. Bush would win the election. This action by the Court's majority, argues trial lawyer and bestselling author Bugliosi, was a "judicial coup d'‚tat" that stole the election from U.S. citizens and simply handed the presidency over to the Court's guy, a conservative Republican like themselves. It was also treasonous, asserts Bugliosi, if not by statute it does not fit the legal definition of treason at least in spirit; the five justices are "criminals in the very truest sense of the word," he says, who have exhibited "the morals of an alley cat." The Florida recount, claimed the Court, was invalid because it violated the equal protection clause of the 14th Amendment; as different counties used different methods for determining voter intent, voters were being treated unequally. Bugliosi argues, in precise yet accessible language, on page after page, that this justification does not stand up to scrutiny; that it is an incorrect and unprecedented use of the equal protection clause, feebly applied and argued, and was simply the best excuse the Court majority could come up with. Bugliosi, perhaps best known as the author of Helter Skelter, often writes with the subtlety of a professional wrestler, but here he diverges from much of the outrage that passes for political commentary these days by backing up his bluster with careful legal analysis. The results which, Molly Ivins calls "the modern equivalent of `J'Accuse' " are troubling and fascinating."

http://www.amazon.com/exec/obidos/ASIN/156025355X/102-6547407-2652101

[wtmusic]

9. thanks

looks like a good one :thumbsup:

[DearAbby]

13. I believe this idea had been posted. But could Ohio Elections also be

Judged invalid due to the violation of the 14th ammendment: different counties used different methods for determining voter intent, voters were being treated unequally, suppressed, intimidated, unequal amount of access to voting machines...?

[troubleinwinter]

15. Too late to judge Ohio election invalid, but

Conyers and 3 other congress members have written to Ashcroft to demand a Special Investigator to look into exactly these violations.

[Philly Buster]

11. The argument was that the different counties in Florida

had different standards for determining voter intent which was argued to be a violation of the equal protection clause of the 14th amendment. 7 justices agreed. 5 justices said stop counting.

[wtmusic]

12. That would seem to argue for throwing the count out altogether

and doing another, or invalidating FL's electoral votes.

:crazy:

[Carolab]

14. It would argue that there was no "Federal question".

It was a state's issue and should have never come to the SCOTUS nor settled on the basis of equal rights unless they were prepared to apply this standard across the scope of the entire election.