Thursday, May 20, 2010

Clarification on the Sexual Deviant Post

This is in some ways a response to Dave's Supreme Court Fail, Again post but mostly it is, as the title suggest, a clarification to make sure that my point was not lost or my stance on the issue of sexual predators was not misinterpreted.

I would never want anybody to take from my previous post More 'Time' For Sexual Deviants that I'm defending child molesters. I am most certainly not. I am all for chemical castration personally but that's not my job to decide.

But I firmly believe that the Supreme Court has really screwed up on this one.

The problem began with Congress making a law that is unconstitutional in the first place. The problem was persisted when the Supreme Court decided that the law was okay as far as the Constitution goes. I am assuming that is what they were doing.

Personally, I'm not sure if half of the judges on the Court really know a flipping thing about the Constitution because lately they are constantly going against their charter. In essence, they have been, for many years, making law from the bench and that is not their job. Their job is to interpret the laws that Congress makes and determine if they are constitutional or not.

The biggest problem, however, is, who is the Supreme Court accountable to? Nobody.

Congress is accountable to the people that elects them. So if they screw up, the people vote them out (or that is how it's supposed to work. The problem there is ignorant un-informed citizens that keep voting the incumbents back in no matter how much of a piece of trash they are).

The President is accountable to Congress. So if he screws up really bad, he is impeached and forced to stand trial before Congress to determine if he can keep his job or not.

The judges on the Supreme Court, however, are accountable to no one. Once they are confirmed by the Senate, they are in their position until they die. There is not stipulation for the people to decide whether or not a judge loses his or her seat.

So what was that by the people, of the people and for the people thing all about? I forgot.


  1. Otter, it is curious to me that I have heard so many people take that view--that is, that SCOTUS should somehow be more accountable. The argument back in the day was that it was precisely this lack of accountability that secured the court's independence. From Federalist 78, for example:

    That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

    There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

    Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

  2. Part the second (I am getting very tired of having to split comments up for Blogger, but hey, what ya gonna do?)

    You'll note that the author cites something that most people miss: the tenure is not for life. It is to last for the duration of their "good behavior." I am not enough of a historian to know whether or not a justice has ever been threatened with impeachment, but it seems to me that the possibility is at least hinted at.

    And, too, you have to remember that Congress can make laws and prohibit the Court from ruling on them. This is within their Constitutional powers. They just don't have the ahem! to do it.