(H/T – Mark Reardon)
CNN’s Jeff Greenfield, in a rare moment of clarity, comes up with a few questions that sound better than anything coming out of the Senate Judiciary Committee for Judge Alito. Mark takes his stab at the loony-bin second set, so I’ll go for the first set. I’m not a lawyer, but let’s play along anyway:
Everyone seems to agree it’s wrong for judges to “legislate from the bench.” Give us two or three examples from the court’s past where, in your view, the court legislated from the bench. – Greenfield may not like my answers to this question, but Roe v Wade sure as heck comes to mind. Going back into history, the Dred Scott decision was another.
Name two or three justices from the past whom you do not admire. Why not? – Roger Brooke Tanney because he thought that he and his fellow Supremes alone could decide whether certain free blacks were in fact citizens. Earl Warren for starting the modern strain of judicial activism, and Warren Burger for continuing it.
The Ninth Amendment says that the enumeration of certain rights [in the Constitution and the Bill of Rights] should not be held to disparage other rights… .” What does this mean? – The rights listed in the Constitution, whether they are found in the body, the Bill of Rights, or succeeding Amendments, are not the end-all, be-all. That having been said, not everything is a right. Further, the Tenth Amendment seems to rule out any federal role in the determination of those “other” rights except through further amendments.
Justice Scalia says that the court was wrong 80 years ago, when it began to apply the Bill of Rights to the states. Do you agree? – That depends on which Amendment is being applied. Nothing in the First Amendment should be applied to the states; it was one of only 2 (the Tenth being the other) that specifically spoke of limiting only federal power. The other 8, on the other hand, which includes the Second, would and should also apply to the states and local governments.
-If a punishment — say, branding or flogging — was widely accepted at the time the Bill of Rights was written, could it be considered “cruel and unusual” today? – That determination is best left to the legislative process.
