Amy Coney Barrett was speaking my language when she described her philosophy for not making courts so important that everything they do becomes a matter of life and death, so that all rules must be thrown out:
[Justice Scalia’s] judicial philosophy was straightforward. A judge must apply the law as it is written, not as she wishes it were. Sometimes that approach meant reaching results that he did not like, but as he put it in one of his best known opinions, that is what it means to say that we have a government of laws and not of men....
I worked hard as a lawyer and as a professor, I owed that to my clients, to my students and to myself, but I never let the law define my identity or crowd out the rest of my life. A similar principle applies to the role of courts. Courts have a vital responsibility to the rule of law, which is critical to a free society, but courts are not designed to solve every problem or right every wrong in our public life.
The policy decisions and value judgments of government must be made by the political branches, elected by and accountable to the people. The public should not expect courts to do so and courts should not try....
When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party that I was ruling against. Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in law.
Ann
Althouse adds: "That is, she uses her rich, personal life as a foundation for a spare judicial life. This is the opposite of what liberals tend to say, which is that a judge with a rich life brings dimension and empathy to the task of judging."
3 comments:
The actual opposite is thinking that melanin and/or genitalia overcome the uniformity of being raised the same MC/UMC 'burbs, attending the same two law schools, punching the same clerkship and lower court tickets, and practicing the same semi-secular political religion.
As usual, no one -- either media or my elected representatives -- asks the questions I would ask.
Many initiatives of recent years arise from executive order, not legislation. DACA, for instance. Net Neutrality. The executive usually argues the need is urgent, and that the legislature has had a chance to set policy or direct funds, but has not (yet) done so. So the "law of the land" is the wording of the executive order or regulation or administrative guidance, in context of whatever long-ago legislation allowed or delegated the issue to the executive way back when. Fine.
At what point -- length of time, or number of citizens affected, or other trigger -- does an executive order become sort of a "super precedent" that is so ingrained to the overall structure that it can't be revised or even ever REVERSED by a later executive order?
For useful example, the US led mission to enforce UN declarations on Korea. Purely an exercise by President Truman under executive, commander in chief's, authority. No Congressional "Declaration of War" or other approval. Uhm, if we DID want to declare peace on the peninsula -- can that be done by President Trump alone or would he have to get a treaty through the Senate?
ACB -- can you explain to us the penumbra and emanations you observe around executive orders?
So people want to be judged or what do they mean by "don't judge me"?
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