Ideal System...Schiavo as an illustration

[elwoodblues]

In a case such as the Schiavo case, which part of our government should be last to act? Which branch of government should be the final arbiter of what happens?

For those who think the president (or governor) should step in...is that just for 1 case with particularly difficult facts, or is that in all cases?

Should we have the legislature essentially overruling court decisions...again, just for this case or in all cases?

The Schiavo case is highlighting a few important issues for us to consider - the life and death issues are the most obvious. However, it also highlights what I consider to be a bastardization of the system (or at least an attempted bastardization of the system.)

[BCPVP]

I think the judicial system should decide, but on the condition that they interpret the law, which is their job. There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level.

[El Barto]

Congress makes the laws

The executive enforces the laws

The courts interpret the laws

I see no conflict in the Schiavo case. If Congress doesn't like the court's interpretation they can revise and create new laws. This has been done many many times, and as the democratically elected body, this is good and right. The check on Congress is the difficulty of getting a majority together to pass a law.

The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

The decision of what the law should be should belong to the political branches. The courts should only clarify the truly fuzzy areas.

[elwoodblues]

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There was a law passed that asked that this case be given de novo review and that didn't happen.

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Yes, but that isn't the procedure for the relief sought by the parents in the federal action(Temporary Injunction.) The procedure for a temporary injunction has to be truncated, because by its very nature actions seeking temporary relief are time sensitive and a de novo review is not possible.

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The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

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The blanket, ridiculous critical statements about the judicial system seem keep proliferating.

My friend, your statement is not accurate. "Many courts" do not fail to enforce the law as written. You will find that it is the most unusual circumstance that would have a court doing so, and that court would be reversed on appeal, every time.

The problem is not the courts. It is with a Congress or a legislature that, for political purposes, passes vague laws. They then throw it into the laps of the courts to interpret the law and try to figure out what the legislature intended. In this manner, the legislature avoids taking an overtly unpopular opinion, and can point the finger at the courts when they necessarily reach the unpopular conclusion.

Don't fault the courts. Fault your lawmakers for not passing clear bills.

I don't fault you or the others for such statements, however. The genesis is the cabal that loves to scream about "activist judges" and blames the judicial system every time there is a ruling that they don't like. It's all a fiction. If you don't like a ruling, criticize the rationale, but don't criticize the courts. The rule of law requires that our elected officials foster respect for the judicial process. Unfortunately, some of them don't do so, and that's a dangerous thing.

[El Barto]

Sure, Congress deserves some blame for nonclarity, but judges are political decision makers all the time.

It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.

Courts "find" new rights and "hidden" provisions in long standing laws all the time, much more than can be explained from fuzzily worded laws.

Judges must earn the respect they feel they are due, by acting like judges instead of like politicians.

[elwoodblues]

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It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.


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Do you have anything to back that claim up?


Some stats I could find (didn't spend much time)
2002 term:
9th circuit cases to the US Supreme court: 30% of court's total cases; 30% of the overturned cases --- exactly what you would expect.

The overall reversal rate was lower in the 9th Circuit than the 4th, 5th, 8th and 10th circuits.

I haven't found in my cursory look any broader statistics that look at more than 1 term...it would be interesting to see.

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It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.

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This is misleading. Yes the 9th Circuit is the most overturned of the circuits. But the number of times even it is reversed is miniscule. In 2002 (the year I could most easily find data for on the internet), the 9th Circuit decided about 5100 cases. The Supreme Court reversed it 24 times. Do you think that means the Supreme Court reverses the 9th Circuit "all the time"? I don't.

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Courts "find" new rights and "hidden" provisions in long standing laws all the time, much more than can be explained from fuzzily worded laws.

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Nonsense, particularly with reference to "all the time". You need to stop believing what you hear from those who love to bash the judicial system. It's all exaggeration. And if you stop to think about it, you'd realize that it's ridiculous.

[BCPVP]

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"Many courts" do not fail to enforce the law as written. You will find that it is the most unusual circumstance that would have a court doing so, and that court would be reversed on appeal, every time.

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Wouldn't the very nature of a reversal due to an appeal mean the lower court made a mistake in interpreting the law (in a lot of cases, not all mind you)?

[ILL34GL3]

All three branches of the federal government are too powerful as it is. This should be handled at the state level. Now if only we could get our representatives to represent he will of the people.