Thursday, May 26, 2011

Legislating from the Bench

Here's my theory: by the time a case reaches the Supreme Court, you can be sure that there is no easy answer and reasonable people will disagree.

Since the court cannot end in a tie, (and presuming the Justices are reasonable), you would expect a very close ruling. I consider a 5 to 4 ruling the gold standard of the justice system. It means that the lower courts have acquitted themselves properly.

When you find a very one-sided ruling, such as the Fourth Amendment Kentucky v. King case, with an 8 to 1 majority, you can be sure that something is broken. If it was that easy to decide, it should not have been resolved at the level of the Supreme Court.

Just like amending a constitution to allow for an extra term is an early symptom of dictatorship, a very one-sided decision is a symptom of legislating from the bench.


Blogger Noumenon said...

Per here a 9-0 might sometimes mean they decided to rule on the uncontroversial parts and table the controversial ones. But more likely, I think it says, it might mean they added exceptions and balancing tests until it pleased everyone, so that they could have a 9-0 result that no one would bother appealing next time a Justice died. That is the kind of thing you might do to legislate effectively from the bench.

1:54 AM  
Anonymous Roger Kovaciny said...

However, a very reasonable restriction on Supreme Court power-grabbing would be that 5-4 decisions can only make rulings on the case in question, and that a larger majority, at least 6-3, be necessary to overturn all kinds of other laws. The 5-4 Roe vs Wade decision was the most poisonous decision in American political history.

3:36 AM  
Blogger Noumenon said...

Roe v. Wade was 7-to-2...

6:24 AM  
Blogger Octavo Dia said...

So we have three options:

5-4 decisions are the result of a functioning lower judicial system.

5-4 decisions are broadly written.

5-4 decisions are the result of partisan activism.

I can see all of them in operation. At any rate, it indicates to me that you cannot judge a decision based solely on how many justices were in the majority.

10:11 PM  

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