Breyer: Court should aid minority rights

[Matthew Carberry]

I'm not sure why "speech" is so hard to apply to modern devices. 

In the Founder's day speech was either spoken or written.  When you use a whisper, a bullhorn, a telephone or any other transmitter, wired or wireless, that transmits spoken language of any kind you are speaking.  When you use a pen or typewriter or keyboard or any device, wired or wireless, that transmits written language of any kind you are writing.

I'll take my seat on the Supreme Court now. 

[Cosmoline]

I think thats a misreading of the 14th.

If the 14th applies only to Congress, and Congress choses to ignore it, then what's the check against that abuse?  What's to prevent Congress from ignoring all the BOR?  The answer was provided very early in the Republic, in Marbury v. Madison.  This has in turn been codified and accepted by the other branches.  You cannot read the Constitution in a vacuum, or it becomes a useless parchment. 

The 14th does not reference the Supreme Court at all. 

Neither does any part of the BOR.  See Marbury.

As for stepping in, judicial review itself is not a constitutionally granted power of the court. 

Not specifically, but it's been accepted since the first Judiciary codes and the creation of the Art. III court system. Marbury resolved this conflict.  If you want to read the Constitution in a void, then the ONLY judicial office Congress need appoint is the Chief Justice of the SCT.  All other judicial positions are creations of statute.  If Congress did this, there would no longer be any meaningful review of any statute.  But that would be a very fast road to tyranny.  This is why it's important to read the Constitution in the context of its evolution over the life of the Republic. 

Breyer's comments seem to imply that minorities (ethnic minorities?  religious minorities?  political minorities?  I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.

That's the system that's been created.  I don't agree with it, but Breyer is correct in describing it.  You can plug your ears and hum, but thus is the world. 

Thus the court would insure that gays have "a right to marry" each other.  This regardless of the state ballot initiatives outlawing such unions.  that is why I descry judicial activism that overturns the will of the people.

Um, there has been no such opinion from the US Supreme Court.  It sounds like you've jumped over to an attack on the Mass court system, which is a totally different issue.

[Eleven Mike]

Breyer's comments seem to imply that minorities (ethnic minorities?  religious minorities?  political minorities?  I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.

That's the system that's been created.  I don't agree with it, but Breyer is correct in describing it.  You can plug your ears and hum, but thus is the world. 

Equal protection, good.  Special protection (protection that others don't receive) is bad.

[Cosmoline]

Breyer is wrong.  That other people are also wrong oughtn't change matters any.

As far as the way the Court and Congress have intepreted the 14th and applied it since the civil rights decisions of the 50's, I am inclined to agree.  But the attack should not be on Breyer, who was simply trying to describe the law as it stands now.  He's not issuing opinions on FOX, or at least he shouldn't be.  Scalia goes on rants sometimes outside of the court, but it's not good practice for any judge.  

I agree that Brown was a horrible opinion.  It turned the federal courts into administrative agencies charged with trying to impose some absurd sociological scheme on southern school districts.  But ending that legacy is going to be slow and painful, and will come bit by bit.  

[The Rabbi]

I think thats a misreading of the 14th.

If the 14th applies only to Congress, and Congress choses to ignore it, then what's the check against that abuse?  What's to prevent Congress from ignoring all the BOR?  The answer was provided very early in the Republic, in Marbury v. Madison.  This has in turn been codified and accepted by the other branches.  You cannot read the Constitution in a vacuum, or it becomes a useless parchment. 

The 14th does not reference the Supreme Court at all. 

Neither does any part of the BOR.  See Marbury.

As for stepping in, judicial review itself is not a constitutionally granted power of the court. 

Not specifically, but it's been accepted since the first Judiciary codes and the creation of the Art. III court system. Marbury resolved this conflict.  If you want to read the Constitution in a void, then the ONLY judicial office Congress need appoint is the Chief Justice of the SCT.  All other judicial positions are creations of statute.  If Congress did this, there would no longer be any meaningful review of any statute.  But that would be a very fast road to tyranny.  This is why it's important to read the Constitution in the context of its evolution over the life of the Republic. 

Breyer's comments seem to imply that minorities (ethnic minorities?  religious minorities?  political minorities?  I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.

That's the system that's been created.  I don't agree with it, but Breyer is correct in describing it.  You can plug your ears and hum, but thus is the world. 

Thus the court would insure that gays have "a right to marry" each other.  This regardless of the state ballot initiatives outlawing such unions.  that is why I descry judicial activism that overturns the will of the people.

Um, there has been no such opinion from the US Supreme Court.  It sounds like you've jumped over to an attack on the Mass court system, which is a totally different issue.

I guess you agree with me then.  I posited that nowhere does the USC appoint the Supreme Court as protector of minority rights.  You have not shown anywhere where it does.  As for Congress passing legislation contravening the 14th, the President has an obligation not to enforce it, under his oath.  The USC is not the only part of government pledged to uphold the USC.  You have not refuted that in any way.
When I write "the court would insure" I use a subjunctive to show it is a theoretical.  Maybe that escaped you.  But under Breyer's bizarre theory that is how he would vote presumably in such a case.
I agree (yet again) with the Headless One that just because a bunch of people think like Breyer does not mean he is correct.  In fact he is dead wrong.

[RadioFreeSeaLab]

Policy trumps the Constitution.

Be afraid, be very afraid.

Already am.

[Khornet]

Cosmo, the SCOTUS' job is to protect the Constitution and nothing else. It is most emphatically NOT to ensure any particular outcome. It is not to make sure things are "fair". It is to decide whether a particular act is compatible with the Constitution; if so, though the result may be unfair to some, it is Constitutional. If not, though it bring fair results to many, it is un-Constitutional. Period.

I realize that's not the way the game is played nowadays, which is why there's always an almighty peeing contest with the Dems whenever a SCOTUS nomination comes up. They expect a conservative nominee will do as their nominees do, as Breyer et. al. do, and make policy. Same kind of projection anti-gunners practice, whereby they think a gun in hand makes everyone a killer.

[gyp_c2]

...very, very, very afraid...not a big jump from this to interpreting the rest of the documents, is there?!...

[Cosmoline]

Cosmo, the SCOTUS' job is to protect the Constitution and nothing else.

Where did you get that idea?  The SCT is the highest Art. III court, and takes appeals on everything from military trials to the patent issues to the federal contract claims.  As one of the three branches of government, one of the Court's main jobs is to ensure that the balance established in the Constitution between the branches does not come undone. 

[Hugh Damright]

I don't believe that the 14th "Amendment" empowers the US to integrate schools. There is a good book which covers this subject: We the States, which was put out in the 1960's by the Virginia Commission on Constitutional Government.

[Matthew Carberry]

...ensure that the balance established in the Constitution between the branches does not come undone.  

is identical to saying

to protect the Constitution and nothing else

.

If the balance is "in the Constitution", then maintaining it, to the letter of the Constitution and nothing more IS "protecting the Constitution".

However, going outside of the Constitution as written to try and maintain anything IN the Constitution as written is "breaking the law to keep it" or "destroying the village to save it".  It's a contradiction in terms.

[Cosmoline]

If you tried to stay within the written bounds of the Constitution without reference to anything else, you'd have a non-functional government with one employee of the judicial branch. 

I do believe that the 14th "Amendment" empowers the US to integrate schools.

I don't either, but undoing what has already been done is nowhere near as simple as you guys think.  The Court has gotten itself into a real mire. 

[Otherguy Overby]

Just in case you'd like to see just how scary Breyer's thinking really is:

http://www.fed-soc.org/audio/2006Scalia-Breyer.htm

Or for the short attention span types an excerpt can be found here:

http://powerlineblog.com/archives/016169.php

Seems Breyer is a delusional socialist and needs to be impeached or hung.