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JAIL for judges?
October 15, 2006 10:25 PM Subscribe

Don't like a judge's decision?If you live in South Dakota, don't bother appealing. Just sue the judge instead, with the help of the Judicial Accountability Initiative Law (possibly embedded sound), or Amendment E, a ballot initiative that would allow judges and other decision-makers to be stripped of their normal immunity, and then sued by anyone who felt they'd been wronged by a judgment of theirs. Judges could "lose their jobs or assets" for making an unpopular decision. Many people don't like it, but the majority of South Dakotans do not appear to be among them, even though their legislature is unanimously against it.
posted by oaf (58 comments total)

I wish we had a voter accountability initiative. If you vote for this, you get punched by someone not from South Dakota.
posted by allen.spaulding at 10:38 PM on October 15, 2006

Activist plaintiffs.

Btw, civil and criminal cases are different: these judges could be sued, but they're not going to jail.
posted by Blazecock Pileon at 10:42 PM on October 15, 2006

Sure. Sue the judge. Good luck finding a judge who will take that case.
posted by solid-one-love at 10:46 PM on October 15, 2006

20 years for 2 oxycontin pills.
posted by delmoi at 10:54 PM on October 15, 2006

Btw, civil and criminal cases are different: these judges could be sued, but they're not going to jail.

JAIL is an acronym for Judicial Accountability Initiative Law.

Now, if a judge gets sued and loses, can he sue the judge who allowed him to be sued in the first place?
posted by oaf at 10:58 PM on October 15, 2006

Delmoi, that's what the appeals process is for. Like it or not, the judicial branch is not beholden to the public, nor should it be. If the law is such that outrageous penalties are possible, the people should petition their representatives in congress to change the law, not sue the judges, who are simply acting as the law directs them! To assert otherwise is to grossly misunderstand the structure of the US government, in my humble opinion.
posted by TheNewWazoo at 10:58 PM on October 15, 2006

Maybe the folks in South Dakota and New York need to get together?
posted by taosbat at 11:03 PM on October 15, 2006

the judicial branch is not beholden to the public, nor should it be.

I'm not sure if the judiciary should be (or ever could be) insulated completely from public opinion, but I agree that judges should certainly be protected from this kind of bullying. It's not quite torches and pitchforks, but these measures do seem to be a kind of mob-like intimidation attempt.

If you vote for this, you get punched by someone not from South Dakota.

Speaking of mob intimidation, I would like to be the first to volunteer for this. I don't pack much of a punch, though...
posted by Urban Hermit at 11:10 PM on October 15, 2006

This'll be profitable for corporations that break the law. The system works again.
posted by Blazecock Pileon at 11:17 PM on October 15, 2006

Wow, that is seriously fucked up. Expect a sudden shortage of judges for those in South Dakota 5 minutes after the law takes effect. Or maybe South Dakotans want their Wild Wild West days back?
posted by Salmonberry at 11:29 PM on October 15, 2006

I'd like to clarify my earlier comment:

In the two states where I've exercised voting rights, judges are subject to a popular vote every x years; however, unless subjected to a recall (which I've seen), or prosecution (which I've also seen), they then serve their terms with their best shot at impartiality before the law hopefully guaranteed by their immuntiy to suasions like a vagary of suits and their vulnerability to superseding interpretations of law.

I drew the comparison between SD and NY because I am equally horrified by both.
posted by taosbat at 11:32 PM on October 15, 2006

What we need is a system whereby every judicial decision can be submitted to "delmoi", where the great "delmoi" can vacate any and all decisions.
posted by delmoi at 11:38 PM on October 15, 2006

The judge is not a private party, he (or she) is a civil servant. Just as you don't sue a cop for police brutality, you sue the police department or its governing body (such as the city or state), you should not be able to sue a judge; if anyone you should sue the entity having jurisdiction.
posted by George_Spiggott at 12:10 AM on October 16, 2006

Infinitely Recursive Lawsuits. Must have been thought up by a lawyer.
posted by srboisvert at 1:25 AM on October 16, 2006

This is hilarious! No sane person would be a judge in such a jurisdiction. You'd end up with people like this, with nothing left to lose.
posted by A Thousand Baited Hooks at 2:29 AM on October 16, 2006

How could this possibly have unforseen consequences?
posted by psmealey at 2:52 AM on October 16, 2006 [1 favorite]

Initiatives. Everything that's wrong with American democracy, in one easy-to-love package.
posted by blacklite at 3:02 AM on October 16, 2006 [1 favorite]

Judges can make some pretty fucked up decisions, such as sentencing a person to 20 years in jail for selling two oxycontin pills to a friend turned police informant. I say send those guys to jail too.
posted by delmoi at 12:53 AM CST on October 16

Isn't that a crime? If so, why should the guy not go to jail? Oh, that's right. You are a drug user, so you think it is fucked up for a judge to actually apply the law as is his duty. Gotcha.
_______

This initiative is an atrocious idea. And this will really, really have an impact on family law courts. Every decision made in a family law court is a hard decision that the losing party vociferously disagrees with. Custody of children, division of assests, spousal support awards. Those cases are the most emotionally charged and often require the most arbitrariness.

I can be fairly creative in arguments, but I cannot construct one good reason for such a bill. Even with other considerations (such as the fact that most, if not all, states and the federal rules make an allowance for Rule 13 sanctions for parties who file frivolous pleadings), I can't fathom this being anything other than a cripplingly horrendous idea.
posted by dios at 7:29 AM on October 16, 2006 [1 favorite]

I've been reading MeFi for a bit over a year now and the whole time I've wondered why everyone seems to hate dios. Now I understand.
posted by iconjack at 7:45 AM on October 16, 2006 [1 favorite]

Suppose this passes, and then eventually the South Dakota Supreme Court declares law unconstitutional wr.t. the state constitution. It seems then that if no one else the people of South Dakota would have some grounds to sue their Supreme Court over that decision...fun times.
posted by little miss manners at 8:03 AM on October 16, 2006

eh? What do you find so offensive? My criticism of the initiative? Or was it my retort to delmoi? If you think it is was offensive because I said delmoi is a drug user, then you shouldn't. He has mentioned drug use in the past. And, as a general rule, you will find that most people who bitch the loudest about drug laws are users themselves. If you think my comment was offensive to him, I doubt it. Ask him: I'm sure he will be open about his opposition to drug laws. But his opposition to the policy is a worthless basis to claim a judge's ruling is "fucked up" because he was applying the law.

But actually, delmoi provides a good example of why this legislation is a bad idea. People who hold views inapposite with the law as articulated by the people will complain when judges do their job and enforce the law as written. So while delmoi is pro-drug, the law makes it a crime. The judge has to punish it like a crime. So you will have people who object to the policy taking it out on the judge. And that is bullshit. The judge's job is to enforce the laws of the people.
posted by dios at 8:06 AM on October 16, 2006

If the law is such that outrageous penalties are possible, the people should petition their representatives in congress to change the law, not sue the judges, who are simply acting as the law directs them!

QFT.

dios, I agree with you here. If the law gives judges the right to enact harsh penalties against criminals, and you disagree with this, the proper course of action is to change the law, not to attack the judges for doing their job.

Anybody else see the connection between this and the anti-abortion legislation being pushed through in the same State?
posted by rockabilly_pete at 8:16 AM on October 16, 2006

Also, you apparently think 20 years for selling oxycontin is just, as it gets another criminal off the street. Why aren't you doing your duty as a citizen and reporting delmoi to the authorities? He is a known drug user. Furthermore, he is flouting the law!
posted by iconjack at 8:20 AM on October 16, 2006

The judge's job is to enforce the laws of the people.

The judge's job, as far as I can tell, is to judge cases at law and oversee the administration of justice. Sometimes the laws of the people and the aforementioned judicial duties are at odds.
posted by adoarns at 8:28 AM on October 16, 2006

So I assume if Amendment E becomes law, you will be advocating for the strongest possible penalties for judges who end up breaking this stupid law, right? After all, those judges will simply be lawbreakers and deserve whatever they get.
posted by iconjack at 10:16 AM CST on October 16

I'm not sure I follow you here. Can you restate this?

Also, you apparently think 20 years for selling oxycontin is just, as it gets another criminal off the street.
posted by iconjack at 10:20 AM CST on October 16

"Just"? In what context are you using the word? Morally just? Ethically just? Legally just? I think it is legally just if that is what the law requires. Again, if you go back and look at the case beyond the simplistic formulation "2 pills = 20 years, " you will see that the guy had prior convictions and that there were problems with oxycontin. As a legal principle, the guy broke the law. The fact that it was 2 pills or 20 pills is relevant only to the extent that it defines which criminal statute he violated. The guy was convicted and the judge had to sentence him in accordance with the law and the sentencing guidelines. That he had prior convictions is calculated into the task. If you look at the Supreme Court cases on this, they are very interesting. The plaintiff in Andrade was a long sentence for stealing videos from a video store. But because of the three strikes law, he got a long sentence.

There is a public policy to punish recidivism, and the punishment for the third strike is viewed in light of the entirety of the criminal record, not just for the most recent act. So it was the legally just and appropriate thing for the judge to do in the Oxycontin case.
posted by dios at 8:29 AM on October 16, 2006

IMO, being punished for a crime has no connection whatsoever to "deserving" anything. It's simply action / reaction, based on the rules that your society adopts. I'm sure there are plenty of criminals who didn't deserve the punishment they received, and plenty of free people who deserved some pretty nasty things. This happens because the rules are unjust. The proper response is to change the rules.

If you can't, because your society / State is filled with a bunch of whackjobs, I encourage you to get out while you still can. Either that, or you must accept the very real consequences of breaking the rules and losing.

To be clear, there have been plenty of criminals throughout history there that have my utmost respect. The American Revolution was led by a bunch of treasonous murderers, for example.
posted by rockabilly_pete at 8:30 AM on October 16, 2006

The judge's job, as far as I can tell, is to judge cases at law and oversee the administration of justice. Sometimes the laws of the people and the aforementioned judicial duties are at odds.
posted by adoarns at 10:28 AM CST on October 16

Then you don't understand the judicial branch. And I don't know where you get your understanding of the judicial duties. In this country, the law is created by the legislature as the articulation of the will of the people. Judges in this country are bound by the laws of the people. As part of their oathes of office, they are required to uphold the law and not to place their beliefs in front of the law.

And it is anti-democratic to argue that a judge should ever overrule the law. To argue so, you are ceding your constitutional rights and the power of the legislature to robed kings (judges) who have the power to make law. That is a view that is at odds with the Constitution and the principles of this country. He don't live in a juristocracy where judge's get to make the law. We live in a country where the legislature makes the law.
posted by dios at 8:35 AM on October 16, 2006

rockabilly_pete: I would agree with everything you just said.
posted by dios at 8:37 AM on October 16, 2006

I think this kind of law is the sort of thing that this country needs what with all the activist judges out there legislating from the bench and keeping good men down through outlandish support payments to lazy women who tricked us into having children we didn't want in the first place!

Wee

Todd

Did

Moe

Rans
posted by Fezboy! at 8:42 AM on October 16, 2006

If I'm reading the Amendment E site correctly, the law only lifts immunity for judges in the following situations:

Judges shall not have immunity for:

* Deliberate violations of the law, or of the state or federal constitutions.
* Fraud or conspiracy.
* Intentional violations of due process.
* Deliberate disregard of material facts.
* Judicial acts without jurisdiction.
* Acts that impede the lawful conclusion of a case, including unreasonable delay and willful rendering of an unlawful judgment or order.

IANAL, but that seems like a fairly limited list of grounds to lift immunity for; they're also things that seem very difficult to prove in court. I guess I'm not seeing the sky-is-falling element here. It certainly doesn't quite look like what that Washington Post op-ed makes it out to be, a right to "sue a judge for failing to rule your way." In fact, the opponents - including the linked one responding to Amendment E's sponsor - consistently fail to explain why it is that a judge acting outside his or her jurisdiction or committing fraud should be immune from lawsuits.

That's the core question from this layperson's perspective. "Why shouldn't citizens have the right to try to prove in court that a judge who ruled against them committed fraud?"
posted by mediareport at 8:53 AM on October 16, 2006

IANAL, but that seems like a fairly limited list of grounds to lift immunity for; they're also things that seem very difficult to prove in court.

They don't have to be proven in court. There is a jury of ordinary citizens that decides whether to lift immunity. Wouldn't that infringe on the judge's right to due process?
posted by oaf at 9:04 AM on October 16, 2006

"Just"? In what context are you using the word?

Let see. Guy breaks law. Goes to jail. Sounds like justice to me.
-- dios
posted by iconjack at 9:05 AM on October 16, 2006

mediareport: the problem is that litigants never understand legal procedure or laws. So to some litigant (or this lay grand jury), it may seem to them that the judge is ignoring a material fact or one of the other complaints, when the judge is doing his best to act consistently with the rules of civil procedure.

Take a real hypothetical from my practice: we had a person who was refusing to consent to a hospital giving his newborn twins blood products. The matter was brought before a judge, and the guy argued vehemently that it should not be permitted because of his religion. He honestly believed that he would be damning his children to hell if they received blood products. He believed the judge was violating constitutional rights. In reality, the judge acted consistent with the law and ordered that the hospital be permitted to give blood products to save these twins lives. Now this guy who lost would make every single one of the claims you just listed. And a untrained jury might agree with him on a few of them and the judge would be exposed to liability.

The purpose of qualified immunity for judges is important in the law because a judge has to be able to act without fear of reprisal. If judges will not rule for fear of prosecution, the judicial system is thwarted.

We have remedies if a judge violates his duties. In some states, the judges can be voted out. In all states, the legislature can impeach the judge and take him off the bench. In some states, the executive can do the same. The federal system has similar powers to impeach a sitting judge.

If the judge made an inappropriate ruling, it can be overturned on appeal.

With those protections in place, there are already protections against bad judicial conduct.

So what does this new thing bring? Nothing other the possibility of untrained individuals evaluating judicial acts and exposing them to liability for doing their job. It has a massive chilling effect, as well. Not to mention it will be a logistical nightmare. In every lawsuit there is a loser. If every loser is permitted to bring the judge up before this body, the body would be drowned. Then there is the traditionalist argument that our system have never been operated this way.

The list of negatives is very real. The list of positives is non-existent.
posted by dios at 9:09 AM on October 16, 2006

iconjack: keep up. I just explained that to you how that is the legally just result (in the same comment you were quoting).
posted by dios at 9:12 AM on October 16, 2006

If Amendment E becomes law, I want to see some posts from you that look like this:

"Let's see. Judge breaks law. Judge goes to jail. I'm good with that."
posted by iconjack at 11:10 AM CST on October 16

What judge going to jail? What is your understanding of this?
posted by dios at 9:13 AM on October 16, 2006

Man, I really just can't find any justification for giving a man who sold someone two Oxycontin 20 years. My world just isn't that black and white.
posted by Bageena at 9:14 AM on October 16, 2006

iconjack: I don't think you understand what this is about. The Amendment would permit a body of individuals to review complaints and decide is judges can be sued for their decisions.

How would a judge "break Amendment E [the law]"???
posted by dios at 9:15 AM on October 16, 2006

mediareport, that's a sensible enough reaction, but (1) having seen lawyers who file motions for reconsideration (supposed to be rarely granted to reverse an earlier, errant decision) as a matter of course, it's easy to see this used as just one more thing to gum up the works. (2) The "unreasonable delay" hook could be really broad.

(3) Most importantly, how big a problem is this, really? How often are judges engaged in fraud and deliberate disregard of facts and whatnot? If there's that big of a problem with the administration of justice in SD, then it should be fixed. This whole initiative, to me, excessively personalizes the administration of the law. It seems more designed to build resentment against judges. It fits with the shoutfests and demonization common in political discussions these days.
posted by ibmcginty at 9:22 AM on October 16, 2006

Man, I really just can't find any justification for giving a man who sold someone two Oxycontin 20 years. My world just isn't that black and white.
posted by Bageena at 11:14 AM CST on October 16

Would you give a man 20 years who was
*convicted of marijuana possession
*convicted of cocaine possession
*convicted of possession of controlled substances
*"other crimes"
*sold oxycontin in a community which has a massive drug problem

See punishments aren't given in a vacuum. The 20 years wasn't for the 2 pills, it was because of all of those things. People can disagree with the idea behind aggravation of crimes or "3 strikes" laws that punish recidivism. But it must be acknowledged that those considerations were taken in account in the punishment of that man.
posted by dios at 9:28 AM on October 16, 2006

This law (and others like it, should they be adopted) would be a great workaround for anybody with an illegal / unconstitutional agenda who finds themself nonplussed by their agenda's lack of popular support.

Can't push a bill through congress? No problem, just find a handful of plaintiffs who side with your illegal / unconstitutional agenda and foot the bill for their systematic attacks on any judges who try to uphold the law / constitution. With the judges mired in lawsuits, or simply too afraid to do their jobs, you have effectively dismantled the democratic process, and may now proceed with your illegal / unconstitutional activity.

The supporters of this amendment are preying on ignorance, specifically ignorance of the democratic process and what makes it function.
posted by rockabilly_pete at 9:38 AM on October 16, 2006

They don't have to be proven in court. There is a jury of ordinary citizens that decides whether to lift immunity. Wouldn't that infringe on the judge's right to due process?

The lifting of immunity only opens the door to a lawsuit, oaf, where the case will then get its court hearing, and the accusations of fraud/deliberate malfeasance will have to be proven. Thanks for the comments from others, too. After reading the links, I just didn't like the way the reporting in some outlets (including the framing of this post) distorted the issue; it's clearly not something you can invoke because you just "disagree with a judge's decision." I understand there's potential for this to suck, but I also understand how some folks find existing remedies for censuring and/or removing judges too weak to be effective.

States are laboratories for experimenting, right? If this passes in South Dakota, we have a perfect opportunity to watch experimental democracy in action. I'm not convinced it can't work, and will wait and see what predicted effects actually materialize.
posted by mediareport at 9:58 AM on October 16, 2006

it's clearly not something you can invoke because you just "disagree with a judge's decision."

You can invoke it and automatically put the judge on the defensive by forcing him or her to appear in front of the jury, which will be instructed to lean liberally in the complainant's favor and will interpret the law without any judicial oversight. If the lawsuit is allowed to proceed, the judge risks having to hire his own lawyer to defend himself against spurious charges.
posted by oaf at 10:17 AM on October 16, 2006

iconjack: dios is usually a jackass in political threads, but in legal threads he is generally spot on.

(The reason I dislike him so much in political threads is that he is obviously intelligent and I personally believe he knows better than what he promotes and that 90% of the time he's simply being a devil's advocate.)

But this particular idea is absurd.

There is nothing "good" to this proposition and only "bad". I can't believe anyone with even a modest understanding of the law would believe this would have any prospects of any kind.
posted by Ynoxas at 10:26 AM on October 16, 2006

the judge risks having to hire his own lawyer to defend himself against spurious charges.

Why should spurious charges be a special concern? We already have mechanisms to deal with those and punish frivolous suits, don't we? Isn't that one of the arguments you're using against Amendment E?

/sarcasm

Anyway, Ynoxas, rest assured I'm skeptical. But so far, I've yet to see anyone in this thread discussing some of the specific cases of judicial misconduct the Amendment E folks are concerned about. And please don't bother suggesting that "fox guarding the henhouse" self-policing is really working to hold unethical/tyrannical judges' feet to the fire. I used to talk to lawyers all the time when I was a journalist, and was told over and over again that simply *complaining* about a wretched judge was extremely difficult to get anyone to do, out of fear of reprisal. It's even more rare to see anyone actually getting a wretched judge censured or booted from office. The situation strikes me as analogous to state Bar Associations tending to look the other way on serious prosecutorial misconduct. In my experience, it's rare that we *don't* see that.

So, I'm with the Amendment E folks (if not the Family Research Council activist-liberal-judges folks) on one thing, anyway - there's a serious problem here:

Ethics experts expressed surprise that such transgressions persist because court authorities reacted to earlier revelations of ethical violations with promises of reform.

"It seems to be a very blatant violation of the code of judicial ethics," said Jeffrey M. Shaman, a judicial ethicist at DePaul University...

"These problems are getting worse, not better, and it's because the judiciary hasn't taken some simple steps to make them go away"...
posted by mediareport at 2:45 PM on October 16, 2006

There may be a problem here, mediareport, but the question is whether it's serious enough to warrant a fundamental challenge to the independence of the judiciary. From the examples cited in your link, I would say not: most were the result of simple oversight, and could be avoided in the future through far less radical means.
posted by Urban Hermit at 2:56 PM on October 16, 2006

and could be avoided in the future through far less radical means...

...which haven't been working.
posted by mediareport at 3:03 PM on October 16, 2006

...which haven't been working.

Not perfectly, but they could be improved. If, as suggested in your link, judges are ignorant of what stocks are in their portfolios (or their spouse's portfolios), then perhaps a database could be set up to compare their holdings with the list of parties in any case that comes before them (the legal clinic I worked in used such a method to identify potential conflicts of interest). Or, to make it even simpler, perhaps judges should be required to place their assets in a blind trust for the duration of their time on the bench (and this might have the added benefit of acting as an informal term limit). I just came up with these off the top of my head, so they may have flaws, but my general point is that we don't necessarily have to go to the nuclear option here.
posted by Urban Hermit at 3:15 PM on October 16, 2006

But so far, I've yet to see anyone in this thread discussing some of the specific cases of judicial misconduct the Amendment E folks are concerned about.

Yet, you support their position and are sure nothing fishy is going on here.

Well, lets look at their website where they explain themsleves:

Some examples of the above misconduct J.A.I.L. addresses are ignored laws, ignored evidence, eminent domain abuse, confiscation of property without due process, probate fraud, secret dockets, falsifications of court records, misapplication of law, and other abuses. When passed decisions in family court will be governed by law rather than the vested interests of the state.

Ignored laws is linked to this case. For some reason or another they think some law was ignored by the trial court judge in that case. I presume you would agree with them about that case and think a judge should lose immunity for it. I look forward for hearing your argument as to why that should be based on that case since you are agreement with these folks.

Ignored evidence goes to a 404 page that was a news story, but whatever it was, I'm sure it was great!

Eminent domain abuse goes to the Kelo case, which I would agree was wrongly decided, but I doubt you are taking the position that the Supreme Court judges should be able to be sued for ruling on it.

Confiscation of property without due process goes to some list of webpages bitching about forfeiture, which is the law, regardless of whether you agree with it.

Probate fraud is another dead link, but I'm sure it was fraudutastic!

Secret dockets links to some screed written by prisoners.

Falsifications of court records links to some claim by a disbarred attorney that the Supreme Court of Virginia falsified the records in her disbarrment proceeding.

Misapplication of the law goes to some email by a guy who apparently kept trying to fight a case that was dismissed multiple times and kept having his case appealed. A judge had to order him to stop filing the same case. He was eventually arrested for ignoring the judge's order.

Other abuses goes to a book about how there is an innocent guy in jail.

So that is what these people are upset about. From a legal perspective, these people are as nutty as the morons running around saying that US government did 9/11. In other words, these are conspiracy-addicts who think they whole damn legal system is corrupt.

Maybe you are one of them, too. But I would submit this: if you think this is some sort innocuous legislation pushed to help the rare circumstances when judges are wrong, and if you think that this not something intended to be an avenue to attack every judicial determination even when the judge is applying the law as written, then you are clearly not basing that belief on the nature of the legal system or what the sponsors are advocating.
posted by dios at 3:20 PM on October 16, 2006

America is better off for having judicial activists in Brown v. Board.
posted by bardic at 3:31 PM on October 16, 2006 [1 favorite]

dios: And it is anti-democratic to argue that a judge should ever overrule the law. To argue so, you are ceding your constitutional rights and the power of the legislature to robed kings (judges) who have the power to make law. That is a view that is at odds with the Constitution and the principles of this country. He don't live in a juristocracy where judge's get to make the law. We live in a country where the legislature makes the law.

Whoa, hold up there. I was in full support of you Dios until this point. Do you guys in the states not consider the constitution supreme? What happens when the the legislative branch enacts a law to deny its citizens the right to life liberty and the pursuit of happiness, an inalienable right according to your founding document. Should judges not declare it unconstitutional?

We have all kinds of laws annulled in Canada by the Supreme Court on behalf of the Charter, and I'm happy about it. The legislature must make law with deference to its founding principles.
posted by Popular Ethics at 5:29 PM on October 16, 2006

Popular ethics: of course courts have a right to overturn unconstitutional statutes. I apologize if you thought I was foreclosing that ability. I just assumed it would be obvious in the discussion that we were referring to otherwise constitutionally valid laws and legal procedures: e.g., drug laws, foreclosures, SAPCR, etc. I guess I need to explain everything fully lest someone jump on a comment.

That being said, you are incorrect here:

What happens when the the legislative branch enacts a law to deny its citizens the right to life liberty and the pursuit of happiness, an inalienable right according to your founding document.

"Life, liberty and the pursuit of happiness" is the Declaration of Independence which is not our founding document. The words "pursuit of happiness" do not appear in the Constitution. It would be improper for a judge to overturn a law on the basis that it violates the right to "pursue happiness."
posted by dios at 7:35 AM on October 17, 2006

From dios:

Then you don't understand the judicial branch.

This is quite possibly true.

In this country, the law is created by the legislature as the articulation of the will of the people.

In this country, all law flows from the constitution, theoretically, and also through the tradition of common law. Legislation may operate within the penumbra of the constitution, and interacts in complicated ways with legal tradition.

And it is anti-democratic to argue that a judge should ever overrule the law.

Yes it is. Of course, lots of things in a republic are done anti-democratically, as a means to providing for a stable and just society. And I think most of us can agree that judicial opinions which overrule law based on nothing but personal opinion are bad, but insofar as we are bound to a higher law (i.e., the constitution), it is entirely appropriate to overrule laws which are at odds with it. If the legislature, articulating the will of the people, really wants a piece of law the judges won't allow, they always have recourse to constitutional amendment.

In any case, I don't see how we disagree, fundamentally. I don't want to argue judges can make law; they can't, per se. But Americans aren't always so careful as to behave in ways well-circumscribed by existing law, and American legislators and administrators are almost recklessly keen on creating conflicts within the law. Someone's got to explore the thicket and hack a path out of it.

We live in a country where the legislature makes the law.

I've read my constitution, thank you. :-)

We live in a country where the law ultimately flows from the constitution, which cedes authority for legislation to Congress, which itself has since ceded a lot of authority for administrative statutes to the Executive branch. The constitution also cedes authority to the Judiciary over

all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties
made....

Parallel to "law...as the articulation of the will of the people," the Judiciary decides case law as an articulation of the principles of justice, equity, and constitutionality (not necessarily in that order).

Does the Judiciary fail at its duty? Only as much as the Legislature does. Probably not half so much as the Executive.

Of course, if I'm wrong, just let me know.
posted by adoarns at 10:22 AM on October 18, 2006

dios: "Life, liberty and the pursuit of happiness" is the Declaration of Independence which is not our founding document. The words "pursuit of happiness" do not appear in the Constitution. It would be improper for a judge to overturn a law on the basis that it violates the right to "pursue happiness."

My bad. But I'm still surprised that the legislative branch can pass laws like the recent "Military Commissions Act", which suspend habeus corpus rights and freedom from torture for so called "enemy combatants". I would expect that to at least be challenged on constitutional grounds.
posted by Popular Ethics at 7:08 AM on October 20, 2006

Back to the Good Old Populist Days of Kicking Court Butt
posted by homunculus at 7:12 PM on October 21, 2006

http://www.abanet.org/journal/redesign/n8elect.html

In the nation’s marquee battle over judicial independence, South Dakota voters rejected the Judicial Accountability Initiative Law, aka “JAIL 4 Judges”—which would have created a constitutional amendment abolishing judicial immunity—by a resounding 90-10 margin.

Looks like sanity won the day.
posted by oaf at 9:03 AM on November 9, 2006

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JAIL for judges? October 15, 2006 10:25 PM Subscribe

JAIL for judges?
October 15, 2006 10:25 PM Subscribe