Mr. Davis teaches political science at BYU? Yet he thinks that it was a Supreme
Court decision from 1857 that made slavery "constitutional"? Such
constitutional illiteracy should be unacceptable in a Jr. High School Civics
The Supreme Court was not designed to respond to democratic forces in the same
way that the other brances of government do. In fact, courts in general are
essentially "anti-democratic" institutions. They are supposed to adhere
to the law regardless of what the general population thinks. Whether that
happens in practice is another issue, of course.
I lost any confidence in the SCOTUS when they ruled that Obamacare was
constitutional as a TAX when Obama promised over and over again it wasn't a
tax! Now the federal government can force us to buy and do anything, all they
need to do is call it a tax. "Tax" now can mean anything and now really
I agree with Mountainman the Obamacare case was the straw for me. I have zero
confidence in the U.S. government period.
So Mtm you were ok with Roe v Wade?
New flash for you pragmatist! Our tax dollars are paying for abortions. So the
government is forcing taxpayers to buy abortions, thanks to Roe v Wade. Where
exactly is that written in the constitution?
It has been illegal to use federal tax funds to pay for abortions since the
The inscription on the building in the photo says "Equal Justice Under
Law". Protecting those of the same gender who want to get married seems to
fit the description nicely.
I think the "lifetime" appointment is really a bad idea for all judges.
And, if there is belief that judges are supposed to be non partisan
politically, then why do Presidents appoint conservative or liberal judges?
That the judiciary is blind and non political is the biggest joke of all. The
only way a judge could be non partisan is if he were living in sequestration
like jurors for their whole lives. John Roberts I believe has delt the worst
political blow to the country by allowing Obamacare. That decision will rock
the foundations of America for decades. But, we can all be happy for Justice
Roberts, as I'm sure that he and his family are getting all the D.C area
"A" list invitations that they would have lost if he had ruled using the
Only the radical tea party conservatives. Everyone else respects the law.
@ Roland.The effort to defund Planned Parenthood was voted down in the Senate by
a 58-42 vote. Tax payers therefore are paying for abortions. Planned Parenthood,
the nation's largest abortion provider received $350 million in taxpayer
funds last year alone.
The court only has the power to interpret the law as it is written, according to
the constitution. It is not the Supreme Court's job, for example, to
decide on the merits of Obamacare. Public opinion should absolutely NOT be
taken into account by the court. The design was made such that public opinion
should drive what laws are being created and the court only rules on its
constitutionality. If an opinion is so problematic, the people do have the
power to overturn the court (in theory) by amending the constitution. Also, I guarantee if there were public opinion polls throughout history, the
court's approval rating would have been as low as it is any time they took
on truly controversial topics. Civil rights, abortion, health care, gay
marriage, and affirmative action are sure to upset a lot of folks. Some of
those negative votes might be restricted to one issue, while they approve of the
Re: one voteAre you serious? Where do the Tea Party not respect the
law? They may want to change it yes, but so does every other political group.
And to say what you said in light of all that we are finding out about this
current administration, respecting the law seems pretty low on Obama and Holders
list right now.
OHBU To further one of your points, the kind of Judge I want on any
court is the one that will for example, profess a hatred for guns and the 2nd
Amendment, BUT, will nevertheless rule in favor of the right to keep and bear
arms because that is what the constitution says. The dangerous judges are the
ones who will find some convoluted way to rule in favor of their own wants. Roe
v Wade was an example of such. In addition to my first post, I
actually think that if the Supreme Court were located in say Omaha Nebraska,
many judges would rule differently because they would be out from under the
pressure of D.C. politics
@mg scott --"The only way a judge could be non partisan is if he
were living in sequestration like jurors for their whole lives. John Roberts I
believe has delt the worst political blow to the country by allowing
Obamacare."You do remember that it was BUSH who appointed
Roberts -- right?
Re: plainbrownwrapperI absolutely remember that he was a Bush
appointee. And once again, it would seem that Roberts may go the way of a
Seuter who was another Bush appointee, namely HW Bush. I long for the day when
a Supreme Court judge appointed by a Democrat President, like Obama, becomes a
conservative. It seems that when Democrats appoint liberals, they stay liberal.
When Republicans appoint judges, it becomes a tossup as to where they end up
politically. As I said above, what I want is non-partisan constitutional first
Judges. But as long as the judiciary is as much political as any other part of
government, then I want conservative judges appointed as much as liberals want
liberal ones. Last post.
I think the waning confidence is directly related to increasing political
extremism in the country. The political center is being hollowed out. So,
decisions that do not cater to one extreme or the other get less respect from
both sides. Decisions that do go one way or the other are rejected out of hand
by the other side and there are fewer in the middle to at least be partially
persuaded.In the end, our nation is an agreement to get along and
work together for certain common goals. We formalized that agreement first via
the Articles of Confederation and then via the Constitution. But in spite of
ANY document, governance requires civility and some ability to moderate ones
views for the betterment and advancement of the whole. We are losing that
quality and that does not bode well for our nation.We have sown
seeds of nastiness and divisiveness. The law of the harvest tells us what we
will reap. Karma if you will.Read Washington's Farewell
Address for an indictment of parties and partisanship like no other. He was as
a prophet for our nation.
@mg scott --" It seems that when Democrats appoint liberals,
they stay liberal. When Republicans appoint judges, it becomes a tossup as to
where they end up politically. "Let's see. Liberal judges
stay liberal, and conservative judges become liberal. IOW,
conservative judges get "converted" to liberalism as they learn more
about the Constitution, and as they gain more experience in working with it on a
daily basis.Hmmm. That might give you a clue about which side is
TRULY protecting that Constitution. ;-)
Partisanship has always been ugly. But it reached a new low when the Republicans
decided to oppose virtually everything proposed by the Democrats (particularly
the president they vowed to ruin), no matter how moderate or even conservative
the proposal might be.
I think twin lights has hit on the biggest reason for the polls, it is not a
change in the courts it is the drifting to extremes in our politics that has
lead to people viewing the courts unfavorably. I do also agree anytime the
courts take up a controversial issue those with strong feelings one way or the
other are going to grow more distrustful, it is just basic human nature not a
sign of shifts in the courts.
I have enjoyed Davis' two editorials that I have read so far. It is
refreshing to read examined thoughts. I think the answer is to
expose ALL higher court decisions to more scrutiny by the literate public. The
problem is that our own local courts seem very eager to invoke gags to stop
speech and access to documents regarding their own processes. This may be
further tested in this blogging age. However, since I have been
reading more SCOTUS opinions, I have acquired a degree of respect for their
analysis, even when I disagree or they seem to miss a key piece of logic.I have also acquired a measure of respect for our own Utah Supreme Court
by regularly reading their opinions. Unfortunately, the same cannot be said
regarding my study of the opinions issued by our Court of Appeals.
1857 Dred Scott Scott, an African-American slave, had asked a United
States Circuit Court to award him his freedom because he and his master had
resided in a state (Illinois) and a territory (Wisconsin Territory) where
slavery had been banned. Chief Justice Roger Taney, writing for the court, held
that Scott, as a person of African ancestry, was not a citizen of the United
States and therefore had no right to sue in federal court. This holding was
contrary to the practice of numerous states at the time, particularly Free
states, where free blacks did in fact enjoy the rights of citizens, such as the
right to vote and hold public office. In what is sometimes considered mere
obiter dictum, the Court went on to hold that Congress had no authority to
prohibit slavery in federal territories because slaves are personal property and
the Fifth Amendment to the Constitution protects property owners against
deprivation of their property without due process of law.
Citizens United may be part of the reason for any loss of confidence. Majority rule is nothing more than mob rule and if it violates the rights of
others then it should not be considered in any rulings; just because the
majority thinks one way doesn't necessarily make it the right way.
Then what is Prof. Davis' solution or alternative? Have judges elected?
Require regular voter approval to retain their office? Put issues up for a
popular referendum? The Founding Fathers were virtually unanimous in the
absolute importance of an independent judiciary. Though it is impossible to be
completely objective and unbias, I trust the judges, who are experts on the
Constitution, rights and the law, over the whims of the general public with
little knowledge and education in those areas. The Court has made very unpopular
decisions throughout its history. That alone shows that they rule exclusively on
a law's constitutionality instead of popular opinion and have less bias
than the general public.
I also agree with Mountanman. But... I lost faith years in SCOTUS years ago
when they ruled on abortion telling us it falls under right to privacy. I
suppose what that actually means is... you can dispatch anyone provided you do
it in the privacy of your bedroom.
@Mountanman"The effort to defund Planned Parenthood was voted down in
the Senate by a 58-42 vote. "Planned Parenthood does things
other than abortions. Their funding goes to their other services.
Who cares? That must be why SCOTUS judges are not elected!Those
Founding Fathers must have known something that Mr. Davis missed.
The Supreme court has swung now to an activist court with justices who can only
vote a predictable way. Confidence in the court to rule based on the
constitution with no political flavoring - no? None. Add to that list other
federal govt agencies and institutions including congress, the IRS , the State
dept, and on and on... You have corruption as never before and it just so
happens to have exploding under guess who.... Barack Obama. No surprise here.
@wrz --"I suppose what that actually means is... you can
dispatch anyone provided you do it in the privacy of your bedroom."It actually means that women have the right to control their own bodies.If men could get pregnant, abortion would have been legal and
universally accepted millenia ago.I am looking forward to the day of
artificial gestators. Then we'll see how many men really want to take care
of and raise all those babies that could be saved by technology.Restrictions on abortion sound a LOT more appealing when you're not the
one who has to suffer the consequences.
I have often wondered what the Obama Administration had on Chief Justice John
Roberts to blackmail him into the awful decision on ObamaCare. After all, the
basis for his opinion wasn't even argued by the Government attorney's.
With all the corruption we have seen come out of Obama's Administration
the blackmail makes sense.
Roland,The constitutionality of slavery was never explicitly
acknowledged until the Dred Scot decision in 1857. Until that time, it was
simply and implicit right. The Dred Scot decision formalized slavery into
constitutional law. Clearly, Mr. Davis could not give a more detailed
description in an editorial, nor would he be expected to. I understood what he
meant as would most people familiar with the history of slavery and the law.Mountanman,The government has always been able to call
whatever they want a tax and thus, be within constitutional bounds to do so.
The ACA ruiling didn't pull that one out of a hat. It has been an explicit
principle of the Constitution since it was ratified. It is in fact, one of the
few explicitly mentioned powers of government. The Court's purpose is to
declare a law constitutional if it can be. One of the government's
arguments was in fact that the ACA's individual mandate was a tax. It was
not their primary argument, but it was argued. The Court acted as it was
supposed to be; interpreting the law on its face, not on its popularity.
@RanchHandHuntsville, UTCitizens United may be part of the
reason for any loss of confidence. 12:57 p.m. June 12, 2013[Agreed - the worst SCOTUS decision in years! With upholding Bush's
Patriot Act as a neck and neck 2nd, and Selecting Bush back in 2000 a
distant 3rd.]@pragmatistferlifesalt lake city, utahSo Mtm you were ok with Roe v Wade?7:36 a.m. June 12, 2013[Voted BEST come back of the day, month, and so far this year! haha]
Citizens United stands front and center as one recent reason people have lost
confidence in the Supreme Court.In a 5-4 decision, the U.S. Supreme
Court ruled that corporations and unions have the same political speech rights
as individuals under the First Amendment. It found no compelling government
interest for prohibiting corporations and unions from using their general
treasury funds to make election-related independent expenditures. Thus, it
struck down a federal law banning this practice and also overruled two of its
prior decisions. Additionally, in an 8-1 decision, the Court ruled that the
disclaimer and disclosure requirements associated with electioneering
communications are constitutional.Perhaps "the most blinkered
sentence in the opinion was surely Kennedy’s sonorous prediction that the
“appearance of influence or access” by corporations on the political
process “will not cause the electorate to lose faith in our
democracy.”(Jeffrey Rosen, Politico)
the abortion debate going on here is a bit of a non sequitur, and the leaps to
try and connect the dots are fraught with logical fallacies (public funding for
abortions is illegal since 1970, but Planned Parenthood, the #1 abortion
provider receives public funds, therefore abortions MUST paid for by public
funds). So drop it, it's not germane to the subject of the article.
Citizens and the DNA cases are far worse than Obamacare or Roe v. Wade to the
civil liberties of America.
Just because something is legal does not make it right. Slavery was legal at one
I have no problem with same sex couples forming unions with all the privilage of
marriage. Just coin another word. Marriage is already taken. It is a union of
a man and woman.
@Hutterite:"The inscription on the building in the photo says
'Equal Justice Under Law.' Protecting those of the same gender who
want to get married seems to fit the description nicely."If that
be the case it should also protect those who prefer myriads of other marriage
aberrations such as polygamy, minors, sibs, groups, etc.
@wrz --"If that be the case it should also protect those who
prefer myriads of other marriage aberrations such as polygamy, minors, sibs,
groups, etc."It does. "Equal Protection"
means that **everyone's** civil liberties are protected AS LONG AS they
don't harm anyone else. This applies to EVERYONE.Public safety
has always been a valid legal reason for limiting personal freedoms.Polygamy is known to convey serious risks to women and children -- and courts
recognize these risks, as I've shown in previous discussions.Likewise, incest and child marriage harm children.There is no
inequality here. It is the EQUAL application of legal and moral principles --
especially "first do no harm" -- that declare these other forms of
marriage to be unacceptable.
Court cases are not judged on law, but on party affiliation; otherwise we would
not have 5/4 decisions. Even the most ignorant among us knows that the most
"learned" judges in America should know the law and that they should be
able to apply the law. It is impossible to have 5/4 decisions that follow
"party lines" unless those judges are incapable of fulfilling their
duties. Only a judge who can be bought would "sell" his vote to the
political party that appointed him to the bench; but, that is exactly what
history has shown has happened.Why even claim that the Court uses
the Constitution as the "steel rule" against which they measure
"justice"? Why not just let political parties tell us what
@plainbrownwrapper:"It actually means that women have the right to
control their own bodies."We're talking about dispatching a
totally separate entity that is not 'there own bodies.'"If men could get pregnant, abortion would have been legal and universally
accepted millenia ago."That's why the creator decided to
have the way more compassionate female bear offspring. The creator perhaps
erred in not realizing that some females would become so calloused as to
dispatch a potential person."Restrictions on abortion sound a
LOT more appealing when you're not the one who has to suffer the
consequences."The only sufferer in abortion is the dispatched
I lost confidence in the Court that is now stacked with activist justices
appointed by President Cheney and his little buddy when the came out with that
ridiculous Citizens United decision that made WalMart and other mega
I think Roberts voted for Obamacare because he wanted to show the court was not
locked into ideology, rather than ruling on the law. I was saddened and thought
his rationale was political and way wide of the mark. Yes, I have no confidence
in the court.
Truthseeker, I agree, I think Citizens United was one of the worst decisions
coming out of the court in years (perhaps since Dred Scott). The funny thing is
that President Obama verbally chastised the court in the State of the Union
about it, yet Mitt Romney supported it when he said, "Corporations are
people, my friend."Mike Richards- there you go again. I'm
sure your law degree and vast experience qualifies you to rule on often
complicated Constitutional cases. The beauty of the Constitution is that it is
very rarely a black and white document. The Founders created it that way. If
it had been absolutely rigid, it would have fallen apart, along with this
nation, years ago. You have 5/4 decisions because there are different ways of
looking at things, different ways of interpreting things. Just because you
don't like the outcome means, well, bupkis. You might want to go back and
check on decisions- if they were all on party affiliation, then it would always
be 5/4 according to you, but there are 6/3's and 7/2's and 8/1's
and even, wait for it- 9/0's.
re:MikeRichards"Even the most ignorant among us knows that the most
"learned" judges in America should know the law and that they should be
able to apply the law."Guess what?There are gaps in
the law, despite legislators best efforts to craft straight-forward laws without
"holes." A simple biblical example of gaps in law would be the
commandment "thou shalt not kill." Simply applying the law would
prohibit killing in self-defense situations would it not? Our Constitution
provides a framework, which even after it was adopted, left the framers
disagreeing on the "correct" interpretation. If applying
the law were so cut/dried, black/white we wouldn't need the Supreme Court.
We could use a computer to analyze the facts and spit out a result. The cases
which typically make it to the Supreme Court are ones where there isn't a
simple straight-forward answer.
plainbrownwrapper,I don't agree with you. We are not free to shoot a
gun unless we harm someone. Where I live, no shooting is allowed within city
limits, regardless whether others are present or not. Where I live, the school
zone speed limit is strictly enforced, whether there are children present of
not. Where I live, stealing is always a crime, even when someone has "too
much money for his own good".In other words, changing a
definition to suit a "cause" is never right. If the "cause" is
just, it doesn't need subterfuge.One old man,On the
surface, some would agree with you, unless you told them that they couldn't
buy their food, their clothing, their cars or their house from a
"corporation. When the State gives a corporation the status of a person to
enable it to do business, the State cannot restrict that business from speaking
any more than it can restrain you from speaking. If you truly are offended by a
corporation's speech, you are duty bound to boycott that corporation - even
if it costs you dearly.
To Claudio: The word "slave" or "slavery" does not occur in the
constitution. They used "importation of persons" to refer to the slave
trade. The constitution mentions people who are "bound to service". And
famously it just says "other persons", which everyone at the time
understood to mean slaves.
@j Thomas I have no idea wthat you were attempting to argue with your
strange reasoning in your first paragraph given plainbrownrappers comment and
given the fact that they clearly do present a potential harm to others but
please explain your claim that equal protection under the law for something
that presents no harm to society equates to changing the definition of that law?
I'd have much more confidence, in the SCOTUS, if all the judges were
extreme hard core conservatives...
@plainbrownwrapper:"Polygamy is known to convey serious risks to women
and children -- and courts recognize these risks, as I've shown in previous
discussions."It's not the marriage arraignment that's
at fault. It's the teachings of the participants... as we can easily see
in a certain religion in the mid-east... as I've shown in previous
discussions."Likewise, incest and child marriage harm
children."Would you please explain how so-called incest (i.e.
marrying a close relation including a sib) is harmful to either party?As for child marriages... my neighbor was 21 when he married his wife at age
15. They have been married for 55 years, have a nice family and a loving
Roland,So you agree? Everything you mentioned is "implicit"
in nature, not explicit. The Dred Scot decision was the first explicit
governmental acknowledgement that slavery was constitutional.
"...the court should not only consider the legal issues of a case but also
majority opinion as well."This is soooo dangerous! Just because
a majority thinks that something is right, doesn't make it right. If only
the Supremes were guided by what is right in spite of what is popular or
@Try My Best;You're best is clearly not good enough. Marriage
has never, ever been "one man/one woman only". You are the
one's trying to change the definition of marriage to that. You can even
find that historically, same-sex couples were allowed to marry in many ancient
civilizations, so your argument about the definition fails yet again.A SCOTUS ruling that same-sex couples deserve to be treated equally by the
government (including the use of the word "marriage") is really the only
valid ruling if we are to adhere to the equal treatment clause (Amendment
14).Try a little harder please.
@wrz --"It's not the marriage arraignment that's at
fault."Don't try to make this about any one religion or
culture.As Chief Justice Bauman stated in that 2011 Canadian
decision: "Polygamy's harm to society includes the critical fact that a
great many of its individual harms are not specific to any particular religious,
cultural or regional context. They can be generalized and expected to occur
wherever polygamy exists."Once again -- the courts recognize
these dangers, even if you don't."Would you please explain
how so-called incest...is harmful to either party?"Most incest
involves parent and minor child. The harm there is obvious.Adult
consenting incest is usually outlawed because of the risk of genetic defects in
offspring -- harm to offspring.We can argue about infertile adult
incestuous couples if you like -- but there will be vanishingly few of these to
worry about."my neighbor was 21 when he married his wife at age
15."So what? I might drive home drunk one night and make it home
safely. That doesn't mean drunk driving should be legalized. Laws are about the **risk** of harm, not about the **certainty** of it.
@J Thompson --"I don't agree with you. We are not free to
shoot a gun unless we harm someone."Actually, gun laws are good
examples of the "first do no harm" principle.Where the risk
of public injury is high -- like in cities -- it's illegal to shoot a gun
except under specific circumstances.Where the risk of public injury
is low -- like in the country -- gun laws are more relaxed. For instance, I live
out in the country. Here, I can shoot off a gun as much as I like -- provided I
do so in a "safe" manner (don't shoot it towards other
people's houses and so on). In fact, I specifically called up my local
police to verify this fact, soon after I moved here.@wrz --"We're talking about dispatching a totally separate entity"Nope. It's not "totally separate" as long as it requires a
uterus. Until then, the woman has the right to control her own body.If you don't like abortions, then work to decrease the NEED for
abortions. Volunteer for teen education. Hand out contraceptives. Don't sit around whining about how terrible abortions are. Do something
The only reason I'm losing confidence in the Supreme Court recently is...
it's becoming increasingly and increasingly POLITICALY motivated (not law
based).The judicial branch was supposed to be immune to political
concerns. They were spared elections so they didn't have to pander to
constituents and party bosses. They were intended to be politically
independent. But that is not the case today (on both sides).This
is evidenced in the increasing number of split decisions (split directly down
party lines).IMO Supreme Court decisions should almost never end up
evenly split down party lines with the party with the most supreme court judges
at the time prevailing. That's not how it was intended to work.I would THINK that the type of decisions the Supreme Court is faced with
should almost always turn out practically unanimous. They SHOULD just be
ruling on what the CONSTITUTION says (NOT expressing their OPINION or
legislating what they think the Constitution SHOULD have said, in their
opinion).I would think 9 people reading the same document would come
to pretty much the same conclusions. UNLESS rulings are based on politics and
personal opinion instead of strict interpretation of the LAW itself.
To Claudio: I disagree completely. "The Migration or Importation
of such Persons as any of the States now existing shall think proper to admit,
shall not be prohibited by the Congress prior to the Year one thousand eight
hundred and eight, but a tax or duty may be imposed on such Importation, not
exceeding ten dollars for each Person."--This section deals with the slave
trade, everyone understood what it meant. It says that the slave trade may
continue without interference until 1808. After 1808 congress could pass laws
regulating the slave trade. Everyone at the time knew exactly what his clause
meant, even though they don't say the words "slave",
"slavery" or "slave trade".Not only did the
constitution make slavery legal, it forbade congress from enaacting any
regulations or restrictions until 1808.
Roland,Again, a "wink wink" understanding is called
implicit. We both agree on the meaning of the text. But it is an implicit
mention of slavery, not explicit. The government did not explicitly say that
there were no constitutional conflicts with slavery until the Dred Scot
decision. Mr. Davis is correct. I am correct. You are correct. You just seem
to not want to acknowledge it.
Citizens United is the worst decision ever made by the Court. As soon as
corporations start registering for the draft and fighting in a war I will
believe they are individuals. Money has corrupted politics to such a degree
that the people no longer have any control over candidates. (evidence--John
It seems that those that are "losing confidence in [the] Supreme Court"
are those that do not understand the concept of the Supreme Court. The Court is
a dispassionate arbiter of the law of the land. Public opinion, religion,
political persuasion and personal opinion are irrelevant. You may agree or
disagree with the decisions but they are the supreme law of the land that you
The loss of confidence in the Court mirrors the general loss of confidence in
Government. The main reason for that loss of confidence has everything to do
with a concerted effort from the right to convince the American voter that
"government is not the solution it is the problem". Once
convinced of that notion, many Americans fell for the ruse and began to elect
people who do not believe in government, especially at the Federal level.
Electing this kind of scare politician becomes a self fulfilling prophecy. By
not supporting the notion that government has a legitimate role to play, The
right has increasing left the political playing field to the wealthy and to
large corporate interests. The U. S. supreme court has played into that
narrative with decision like "Citizens United" which opened the door
for unfettered political contributions which, of course give wealth donors and
corporations a lot of influence over the Congress and the elected officials of
the Executive Branch.But as for me, I lost faith in the Court when
it appointed George Bush with the Bush v Gore decision, a bad decision on many
levels, with an enormous negative impact on both history and outlook.