The role of the judicial branch

myp · Sep 1, 2009

One of the very big debates that has been escalating in America for quite a while now is that of the role of the judicial branch. Some people believe that judges should simply take the law as it is, while others feel that judicial activism is ok- in that judges can push certain issues one way or another by expanding the interpretation of the law based on their beliefs of an issue.

Personally I am against judicial activism because the system of checks and balances was put in place to stop just that. It split up power and I believe that it is the legislative branch's duty to really push issues in one direction or the other. Judges should be there in order to enforce the law through the court system.

How do all of you feel about this topic? It is really a crucial debate considering it challenges the very fundamentals of this government.

DodgeFB · Sep 2, 2009

myp said:
One of the very big debates that has been escalating in America for quite a while now is that of the role of the judicial branch. Some people believe that judges should simply take the law as it is, while others feel that judicial activism is ok- in that judges can push certain issues one way or another by expanding the interpretation of the law based on their beliefs of an issue.

Personally I am against judicial activism because the system of checks and balances was put in place to stop just that. It split up power and I believe that it is the legislative branch's duty to really push issues in one direction or the other. Judges should be there in order to enforce the law through the court system.

How do all of you feel about this topic? It is really a crucial debate considering it challenges the very fundamentals of this government.

I agree with you. There are to many judges out there with their own agenda!

myp · Sep 2, 2009

DodgeFB said:
I agree with you. There are to many judges out there with their own agenda!

Sadly, I think Sotomoyor falls into that group as well. This is one of those things that is really starting to blur the system of checks and balances and it really is bad when we start to drift away from the fundamentals.

deanhills · Sep 2, 2009

myp said:
Personally I am against judicial activism because the system of checks and balances was put in place to stop just that. It split up power and I believe that it is the legislative branch's duty to really push issues in one direction or the other. Judges should be there in order to enforce the law through the court system.

Totally agreed. I also feel strongly about this. I like the Boston Legal shows, and during the one show Allan Shore addressed the Supreme Court and pointed exactly at how their "pushing issues" were conflicting with justice.

Dirk · Sep 6, 2009

A judge's duty is not only to judge in accordance with the law, but also to judge the law.

deanhills · Sep 8, 2009

Dirk said:
A judge's duty is not only to judge in accordance with the law, but also to judge the law.

I'm not sure what you mean? Does that then mean pushing issues?

myp · Sep 8, 2009

Dirk said:
A judge's duty is not only to judge in accordance with the law, but also to judge the law.

It is not their duty to push certain laws to mean what they want them to mean because in reality that is not what the law was passed for. It is just like making arguments against the second amendment because of the use "militia." Looking at other historical evidence it is clear that most, if not all of the founding fathers believed in the simple right to bear arms.

Dirk · Sep 8, 2009

deanhills said:
I'm not sure what you mean? Does that then mean pushing issues?

It means that if a jury agrees that a law is unjust, they can change the law. They can do that for one particular case - make an exception - or objectively - change the law.

myp · Sep 8, 2009

Dirk said:
It means that if a jury agrees that a law is unjust, they can change the law. They can do that for one particular case - make an exception - or objectively - change the law.

What gives them the right to change the law? That would mean there is a temporary oligarchy without the people's representation in that moment. Laws should made by Congress and the President, the branches for whom the people vote for, not by a jury of random people or a judge who was not elected.

Dirk · Sep 8, 2009

myp said:
What gives them the right to change the law?

The US Constitution. The Sixth Amendment.

I shouldn't have to tell you this.

myp · Sep 8, 2009

Dirk said:
The US Constitution. The Sixth Amendment.

I shouldn't have to tell you this.

I am not arguing against the right to a jury. I am arguing against biased jurors who change the law to how they want to. In fact, the sixth amendment says jurors should be impartial, which further supports my argument against activist jurors and judges.

Dirk · Sep 8, 2009

myp said:
I am not arguing against the right to a jury. I am arguing against biased jurors who change the law to how they want to. In fact, the sixth amendment says jurors should be impartial, which further supports my argument against activist jurors and judges.

It also says "juries may not only find things of their own knowledge, but they go according to their consciences."

Noah Webster Dictionary 1828 said:
Juries decide both the law and the fact in criminal prosecutions.

Pennsylvania, Indiana and Maryland have it in their own constitutions. The state codes of Connecticut and Illinois also do.

John Adams said:
It is not only the Juror's right, but his duty to find the verdict according to his own understanding, judgment, and conscience, though in direct opposition to the direction of the court.

Further affirmations made by John Jay, James Irdell, John Marshall and Jack Weinstein.

I bring your attention additionally to Sparf and Hansen v. US in 1985.

It is fully and explicitly legislated in 21 states.

Note also the unanimous decision of the Fourth Circuit Court of Appeals in 1969.

Call my bluff on any of them. They're fully researched.

myp · Sep 8, 2009

Dirk said:
It also says "juries may not only find things of their own knowledge, but they go according to their consciences."

Actually, that was written in a law dictionary of the time, NOT in the Bill of Rights. The exact text of the sixth amendment is as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Where do you see anything about conscience?

As for specific court cases and state constitutions, I can make the claim that some of those decisions contradict the United States Constitution based on the text of the Bill of Rights. The real issues with judicial activism are the room for unfair treatment and discrimination as well as a breach in the system of checks and balances. No where in the Constitution does it say that the judicial branch can make laws. By allowing them to interpret to their will could essentially lead to different legal outcomes- some which may not fall under current law and hence simply be a creation of the judicial branch.

Dirk · Sep 9, 2009

myp said:
Actually, that was written in a law dictionary of the time, NOT in the Bill of Rights. The exact text of the sixth amendment is as follows:

Where do you see anything about conscience?

As for specific court cases and state constitutions, I can make the claim that some of those decisions contradict the United States Constitution based on the text of the Bill of Rights. The real issues with judicial activism are the room for unfair treatment and discrimination as well as a breach in the system of checks and balances. No where in the Constitution does it say that the judicial branch can make laws. By allowing them to interpret to their will could essentially lead to different legal outcomes- some which may not fall under current law and hence simply be a creation of the judicial branch.

Fair enough.

The point was more that it is an accepted practice.

I'd rather not delve any deeper into American law. I'll just say that the Constitution is almost as much open to interpretation as the bible.

In several cases, this has influenced the rulings. There is a precedent.

I'm not saying i approve, i'm just saying it happens.

And i THOUGHT it was legal.

Abbott Presley · Dec 9, 2020

Abbott Presley · Dec 10, 2020

The role of the judicial branch

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