The Supreme Law of the Land

by Farkel 65 Replies latest jw friends

  • Band on the Run
    Band on the Run

    This very smart lawyer isn't very smart when it comes to the Supreme Court and its role in American politics. She is referring to what is jokingly called the "ham and eggs" school of jurisprudence. It holds that judges are not constrained in their opinions. Their decisions are based on whatever they eat for breakfast, hence "ham and eggs." Justice Brennan, the great upholder of civil rights and liberties, told his law clerks privately that the test for constitutionality was what five members of the court decided was constitutional.

    This is not how it works in practice. Supreme Court justices don't grow under cabbages. They are bred in many ways. Socializations occurs on many levels - their family, religion, elite schools, law review, etc. They must write opinions that explain their reasoning. In order to do this, they must build consensus within the Court. I've heard many justices, from both parties, describe how in the course of reading their colleagues' opinions, they change their own. In controversial cases, a majority and minority opinion will be written. Justices may also concur or dissent on their own.

    Politics is an integral part of the judicial process. These justices are not hum drum, have no political opinion types, who are tapped to serve on the Court. They almost always have extensive prior experience in politics. They don't always side with the party of the President that nominated them but they usually do b/c their philosophy is consistent with that party's world view.

    Countless volumes, op-ed pieces, law review articles and other forums have debate the way they work. I wish I knew more how judges work in other common law countries, such as England,and code countries such as France or Italy. It might throw a lot of light on what is essentially American in the process.

    Law is not throwing i ching or using a ouija board. I frequently disagree with their decisions. The word for it is democracy. The US Constitution sets up a democratic republic.

  • AGuest
    This very smart lawyer isn't very smart when it comes to the Supreme Court and its role in American politics.

    I dunno, dear BOTR (peace to you!): she graduated top in her class at Hastings and scored so high on the California Bar she is on one of their committees. Could be she's as "dumb" as Justice Brennan, though... I mean, if what you say HE said is accurate:

    "... the test for constitutionality was what five members of the court decided was constitutional."

    I certainly am not as smart as either of them.

    BTW - the term "ham and eggs" never came up. She referred to an actual case. I will email her and ask which one, if you really need me to.


    SA, on her own...

  • Berengaria

    It is exactly as Shelby says. And Jefferson lamented. We have 5 activist judges right now, they are furthering an agenda, and they have been given the supreme power in the land. Over us all. They are the ultimate decision makers. Hell they even delivered us a bastard PO TUS.

  • botchtowersociety

    Hell they even delivered us a bastard POTUS.

    Last I checked, they had nothing to do with the election of the bastard (conceived outside of marriage) President Obama.

    Interesting choice of words.

  • Berengaria

    Bush the Illegitimate.

  • Justitia Themis
    Justitia Themis

    My constitutional law professor clerked for Justice Stevens, and she is an incredibly smart woman...graduated first in her law school class at Northwestern.

    Needless to say, she is a "true believer." Listening to her trying to rationalize that several of Scalia's most famous "flips" were actually consistent decisions was like listening to a JW trying to rationalize "changing light."

  • Farkel


    You said:

    : I think it was Alexis de Tocqueville who said that for evil to be done the times must lend themselves to the committal of that evil.

    Interestingly enough, de Tocqueville was a very young (French) man when he wrote his famous "Democracy in America" in what, the 1830's? I forget. It's been a while since I read it. It's quite a tome, but well worth the read. He was full of insight and his tome is a classic in logic and observation. Of course, his own native Country never learned from what he learned on his tour of our (once) great Nation.

    Alexis came to the same conclusion that the three writers of the "Federalist" (note to alert readers: it was NOT the Federalist "Papers") concluded: local government is better than isolated Federal government. Duh! That's why we have the 10th Amendement in our Bill of Rights. Our Founding Fathers knew that too!

    As I quoted above yiu said:

    :I think it was Alexis de Tocqueville who said that for evil to be done the times must lend themselves to the committal of that evil.

    A very wise judge said, "Liberty lives in the hearts of men and women. When it is lost there, no Constitution, no Court and no Law can save it."

    For those of you who don't participate in the process by voting and by learning and fighting the removal of our liberties by a runaway government(s), you will be slaves to the government(s) that YOU supposed to control before you know it.

    If you are not willing to die for your Liberty and for the Liberty of your children and heirs, you don't deserve the Liberty that so many thousands of patriots died for you to have.


  • GLTirebiter

    We have 5


    activist judges right now, they are furthering an agenda,

    one agenda or the other (according to their respective partisan views),

    and they have been given


    the supreme power in the land.

    It's been going on at least since Marbury v Madison. No Congress has ever had the spine to say "Legislature is empowered to enact the laws; the Supreme Court's charter is to apply those laws faithfully. For exceeding your constitutional authority, you are impeached!"

    Unfortunately, Congress has deliberately chosen to install (and encourage) "activist" judges who morph the constitution and the law in ways even the most partisan legislators dare not attempt. It was a sad, true insight during the debate over the health care act when the most honest point made was "The sooner we pass this bill, the sooner the courts can tell us what the law is!"

  • talesin


    ---- this is fact. I'm copying Farkel's OP.

    If you didn't read the thread 'from the top down', you might have missed the intro.

    In our Republic, we have a Constitution, a supreme document, a document that is over, trumps, overrules ANY and all contrary laws that are passed in Congress, the States and all the little bullshit communities in the States and any little bullshit laws they pass that violate the laws in the Constitution.

  • Farkel

    Hey Shel!

    Yes. I understand your point about the Courts. I knew that. However, comma, there is still a check and balance against them. It is called the "Jury". If there is any unjust law and the jury of OUR peers see it as an unjust law, and a jury of OUR peers doesn't give a shit what a "judge" says from the bench about the "law", if they see a law is unjust, it is their duty to acquit whomever is charged with violating that law.

    Bullshit laws are worthless and unenforceable when juries of OUR peers routinely acquit citizens for breaking them. And if the Supremes "uphold" those laws, juries of OUR peers with a shred of common sense can tell the Supremes to shove it up their robes into a place where the sun don't shine. Supremes are only humans with their own bullshit problems. They are not and never will be Gods in my universe.

    The only way the meanies who want to destroy our Republic completely is to dissolve the trial by Jury system we have. That is our last line of defense against losing all of our Liberties.

    Farkel, Colorful Metaphors CLASS

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