ABA survey: Americans outraged at judges; Out of Touch Scholars surprised

The ABA Journal has a piece on a recent ABA-sponsored survey about attitudes toward the judiciary:

__More than half of Americans are angry and disappointed with the nation’s judiciary, a new survey done for the ABA Journal eReport shows.

__A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."
__
- - -
__The survey results surprised some legal experts with the extent of dissatisfaction shown toward the judiciary. "These are surprisingly large numbers," says Mark V. Tushnet, a constitutional law professor at Georgetown University Law Center in Washington, D.C.

__"These results are simply scary," adds Charles G. Geyh, a constitutional law professor at Indiana University School of Law in Bloomington.

http://www.abanet.org/journal/ereport/s30survey.html

MY RESPONSE? Duh.
The ABA prez quoted is even more out of touch than the scholars.
People are alarmed and outraged at judicial overreach. I would anticipate a coming assassination attempt if one judge could be sorted out.
But the reality is that even lawyers are unaware that this public consternation is an index of increasing objections to the political-cultural wars. The success of the left in law and in courts only redounds to keep Pubbies in elective power - and Dems out.

 

Research indicates that 20%-25% of adult Americans are functionally illiterate.
http://www.americanliteracy.com/literacy_figures.htm
Are these the people who were polled in the study cited by Orson? Common sense would indicate that to some extent, the answer is "yes." Articles such as the one cited by Orson are biased in their very nature. Even if you're willing to give the benefit of the doubt, there's no information given as to how the study was performed. It's just editorial opinion in the end.
Jack

 

Jack:

You say at bottom it's all just "editorial opinion", but you really have told us nothing whatever to support this view other than:

1). 20-25% of Americans are functionally illiterate (so there, I guess that settles it vis-a-vis the ABA survey!); and

2). You don't know what their polling methodology was (well, you could probably google it or check the ABA site and get an answer in five minutes, or at worst, shoot out an email and get an answer within a few days).

I'm just trying to figure out how those two propositions necessarily--or at all--lead to your conclusion. If you think that judicial activism's a good thing, or that our present judges are not, on the whole, overreaching, just come out and say it. Osborne has the chutzpah to say activism's a fine thing so long as the judge is in touch with the expressed will of the electorate--and he supports it with reasoning, however specious it may be (LOL Dr. Osborne).

If you don't like the results, just say so, but come on man, you didn't exactly make an airtight case for your proposition!

 

I'm sorry. I wasn't intending to make an airtight case, I was just offering an opinion. As to that, I'm sorry if I was too obscure. My point was that if 20% of the American public can not even read a newspaper then you can not reasonably expect them to understand the intricacies of the American judicial system. To me, it's a little bit like those political polls that simply telephone people out of the phone book. In such a study you may find that X% of the people think that candidate Z is a great guy. However, since only 40% of the respondents are actually registered voters it really doesn't tell you anything useful about who is likely to be elected. In such cases you need to poll registered voters.

My own opinion (without the support of any data at all) is that the Americans who can not identify John Roberts can easily identify Sponge Bob. If I'm even close to being correct it suggests that the "fact" that more than half of Americans are disappointed with the American judiciary means very little or perhaps even nothing at all.
Jack

 

OK, I'll buy your proposition, Jack, but only so long as you'll apply it equally to all polls taken that do not involve an intelligence test of some sort, whether they gore your ox or your adversary's. If you have a problem with the whole notion of polls in general, fine.

 

Americans are outraged with their judges and out of touch scholars are surprised? Well, guess what. The judiciary was never intended to be democratic and being a judge was never intended to be a popularity contest. Judges (at least the federal judges, anyway) were intended by the Founding Dudes to be insulated from politics because judges are expected to announce timeless principles of justice regardless of whether they are popular at the moment.

 

little fauss,

Hm. "So long as the Judge is in touch with the will of the electorate". Hm.

I'm going to have to chew that over a bit.

That is NOT what I mean by a "living constitution" but now I think I need to consider exactly what I DO mean.

 

Yes you do need to consider it, then you need to renege on your position, swing around to a good healthy strict constructionism, and come join us sensible folk. My friend Antonin and I are waiting, beckoning you...come over to the dark side, Luke.

 

You know, I was going to make that point, but I was too busy taking shots at Jack.

One thing I thought was silly was that a majority of the people were so mad they could take the lives of judges who weren't in touch with their values, but at the same time were fuming over judicial activism. Seems to me that activism is about being in touch with values, be they voter values or judge values or what-have-you, rather than just applying the law in light of precedent, the actual words in the statutes, and--gasp!--the U.S. Constitution, which is the Supreme Law of Our Land, last time I checked (even says so right there in the document).

The only sense I can make of it is that many of those polled are mad at the judges, not because they are activists, but because they are activists for their own values, rather than those of the people polled. So in that case, this poll would not indicate that the people have any principled disagreement with activism per se (like my pure principled position), but just when it doesn't end in public policy results with which they agree.

Funny how that turns about and bites a person on the butt.

Then again, it could just be that people are confused, thus making Jack's argument spot on. But as I've already engaged with him on that debate taking the other side, I'm sure that can't be the case.

 

No, little fauss, no.

The error is both fundamental and subtle.

You are leaping to a Scalia-like conclusion that Judges know nothing except what the Founders meant by their words in the Constitution and are bound, therefore to apply the Founders' meanings. This is false for two reasons:

1) You don't really KNOW what the Founders menat then; the language and world have changed.

2) Even if you KNEW exactly what the Founders meant in THEIR world, that says precious little about what the Founders WOULD have said had they written the document in OUR world.

Scalia-like strict constructionism is nonsense on stilts, to borrow Bentham's phrase.

The second error is so enormous and obvious that it gets overlooked like the elephant in the living room. It is this:

Judges do not have before them only the law and legal argument. They also have before them EVIDENCE. Now, whether you admit that the LAW can change or not, you cannot FAIL to acknowledge that the nature and quality of evidence HAS changed a great deal. Evidence changes with improvements in technology and scholarship. An obvious example is DNA identification, but the advance has been great on all fronts.

Now, when a Judge applies the law to the facts, sometime (often) the "facts" do not describe a particular pre existing legal "pidgeonhole". An existing pidgeonhole can maybe be stretched to accomodate the new kinds of facts that did not exist at the time the legislature enacted the law. Sometimes, there simply IS NO pidgeonhole and a new one must be created.

Strict constructionism is intellectual nonsense and, in Justice Scalia's case, plain intellectual dishonesty in support of an ideology.

 

Why do you bother going to Shul or celebrating Rosh Hashanna? There is no way to know what was meant by some sand scribes of thousands of years past.

Sand castles in the air would be better?

Scholarship improves?

Material evidence like DNA has nothing to do with the Constitution.

Construction on the fly is intellectual nullity.

Let's please remember that the Constitution was not written by or for lawyers. You are just hired hands.

 

Material evidence has EVERYTHING to do with the constitution.

Case in point:

little fauss maintains, and I have no reason to doubt him, that the fourteenth amendment did not prohibit segregated public schools.

The U.S. Supreme Court recognized in Plessey v. Fergusson that "separate but equal" was constitutionally permissible in, what, 1898?

The 1954 decision in Brown v. Board of Education reversed Plessey by declaring that "seperate s inherently unequal" when applied to school systems. This turn about was legally and intellectually possible ONLY because of the developments in the discipline of child psychology.

That, folks, is EVIDENCE.

 

But immaterial.

Immaterial - that is so cute.

Of what mass or dimension is psychology?

 

You are missing the point. The evidence was fundamental and indispensible.

The Supreme Court could not even have HEARD Brown but for the evidence adduced from child psychologists at the trial court level.

Judges do not just wake up in the morning and say, "Today I feel like reviewing Plessey v. Fergusson." Congressmen can do that; state legislators can do that, but not Courts.

The evidence had to EXIST before the case against the Plessey doctrine could even be argued.

The Supreme Court reinterpreted the fourteenth amendment in light of evidence from the trial Court, evidence that wasn't even available in 1865 or 1898.

Whether YOU agree that the evidence was credible really IS irrelevant; it was up to the Courts to decide the case, not you, or me, or Congress, or the Kansas Legislature.