U.S. Supreme Court turns to question of beaches and hot dogs
For all practical purposes, it was like a day at the beach for the U.S. Supreme Court on Wednesday as the justices considered Florida’s program to bring in sand to save miles of eroding shorelines.
A lawyer for six homeowners in Florida’s Walton County argued the program resulted in a strip of state-owned sand between their property and the Gulf of Mexico, depriving them of their exclusive beach access and violating their rights.
The homeowners want the state to pay them undetermined compensation for the “taking” of their property. But some of the court’s liberals appeared skeptical of the argument.
“You didn’t lose anything,” Justice Stephen Breyer told D. Kent Safriet, the attorney arguing for the homeowners. “You didn’t lose one inch. All you lost was the right to touch the water.”
Justice Ruth Bader Ginsburg asked whether any other homeowners had objected to the program.
Several of the conservative justices, appearing sympathetic to the homeowners, asked a number of hypothetical questions about what the state could do with the new beach.
Chief Justice John Roberts wondered whether the homeowner would have the right to stop the state from putting a hot dog stand on the land.
Broken clocks, laryngitis at the Supreme Court
In a place where the time to argue some of the most important legal issues in the United States is pivotal yet limited, clocks throughout the Supreme Court building were not working on Monday — including the big one behind the bench that attorneys arguing their case and that spectators in the audience can see.
After the justices went on the bench at 10 a.m., Chief Justice John Roberts noted the problem and pointed out that attorneys are sometimes told not to look at the clock during oral arguments. “That is particularly important today,” he said.
Court spokeswoman Kathy Arberg said the problem stemmed from a “malfunction” with the court’s master clock. It apparently occurred when the clocks were to be turned back over the weekend for the end of daylight saving time.
Clocks in the building finally were fixed by the time the court heard arguments in a third case in the early afternoon.
Besides a broken clock, the arguments in the first case, a dispute over excessive fees charged to mutual fund investors, also produced another unusual development — the admission from Justice Stephen Breyer that he has laryngitis.
While asking a question, Breyer made a mistake and said the court was reversing — instead of reviewing — a federal judge’s opinion.
“I have laryngitis. I don’t speak accurately,” the hoarse-sounding Breyer told the lawyer as the courtroom erupted in laughter.
Well Mufaso, Who would you want to be there Mr. Lionel Hutz.
Of umpires and the heart at Sotomayor hearing
Senators trying to make points turned to baseball umpires, football, and matters of the heart, at Sonia Sotomayor’s confirmation hearing for the U.S. Supreme Court.
They batted around the words of Chief Justice John Roberts from his own confirmation hearing four years ago when he told the same committee: “Judges are like umpires. Umpires don’t make the rules; they apply them.” (For more umpire analogy discussion see The New York Times).
Democrats sought to portray Sotomayor as a better court umpire than Roberts, who was a nominee of Republican President George W. Bush.
Senator Charles Schumer said there was debate about whether Roberts has “actually called pitches as they come or whether he tried to change the rules.”
But Sotomayor, Schumer said, ”has simply called balls and strikes for 17 years far more closely than Chief Justice Roberts has during his four years on the Supreme Court.”
Senator Richard Durbin used the baseball analogy to strike at conservatives. ”We have observed, unfortunately, that it’s a little hard to see home plate from right field.”
The only ones who were called “OUT” at the hearing were a couple of anti-abortion rights yellers who were ejected from the room.
The truth is both sides are prevaricating and know it. Judges in the English legal system and its American offshoot have been making law and setting policy since the Middle Ages because at the start there weren’t any laws.
Over time, these judicial decisions were largely adopted as the code of the land because they usually made sense. In fact, the Colonies expressly adopted the judge-made laws in England when they became states.
Courts apply a law to the facts presented to them. However, no system of laws can be effective, clear and complete. The more specific laws are, the less effective they are at handling the myriad situations to which they may apply, so laws need some ambiguity. Also, laws are sometimes purposely ambiguous because of legislative compromises or when legislators punt and defer resolution to a future date when the laws are applied to actual facts and we can see how well they work in real life.
Thus, our system of laws, starting with the Constitution, and including every piece of legislation since then, carry some amount of ambiguity. When the law and the facts are clear, there is little need for courts.
Courts get cases where the application of the law in a specific situation is unclear. The parties disagree about what the law requires, but they can’t go to the legislature and get an answer. Think how long it takes Congress to get things done now and imagine them also having to decide individual situations!
What the courts do in these cases is interpret the law. Under all theories of interpretation, from “strict construction” to a “living Constitution,” the courts are trying to figure out how the law works in a specific situation for which the law has no clear cut answer. Since we want all future cases with the same or similar facts to be decided the same way, the court applied solution/interpretation isn’t limited to the parties before it. These judicial decisions have the force of law. It is the policy from now on in that court’s jurisdiction.
This is making law; it is not judicial activism. When the law the court declares is about small stuff or in areas where there is no strong disagreement, these instances of “making law” go unnoticed – all the time.
When a law conflicts with the Constitution, the law is invalid. The Constitution is a document with very broad language and many ambiguities; so, the courts must sometimes interpret the Constitution to decide whether the particular legislation conflicts with it. Whenever legislation is struck down, somebody is upset.
Sometimes, courts are faced with laws that are not clear, or in conflict with each other, in areas that affect a lot of people, or that touch upon divisive issues. The courts must still resolve the controversies before them and in doing so, they make law.
Conservative and liberal policy makers know this. They know courts make law all the time. Moreover, the way our courts make law is not an affront to our democracy because the court’s law-making never ties the hands of the legislature. The legislature can always modify the law at issue and clarify how the law is to be applied in those situations; although, this is a bit harder to do when it is the Constitution that needs modification.
In fact, there are many instances in which courts alert the legislature to the need for clarification, or even beg for guidance. Judges by and large don’t like to make law or policy when a lot of people are affected or in areas where there is political disagreement. This gets them negative press coverage and sometimes death threats.
Usually, politicians only care about the process a court used when they don’t like the result. They accept the court’s law making in other areas, but it isn’t very impressive for politicians to tell their constituents: “This court did not use the right process for interpreting this law.”
Instead, politicians who disagree with a court’s interpretation call it an “activist” court. This is harming how the populace understands the role of the courts and it is undermining respect for the authority of the third branch of our government.
Biden pokes fun at chief justice’s verbal gaffe
Everybody is waiting for Joe Biden, U.S. President Barack Obama’s genial but gaffe-prone vice president, to trip up and put his foot in his mouth. But in the end, the gaffe that everybody was talking about on Wednesday was not his, but the verbal fumble by U.S. Chief Justice John Roberts. Roberts accidentally switched the word order when he administered the presidential oath of office to Obama on the steps of the Capitol on Tuesday. Obama had appeared to jump the gun in cutting off Roberts as he administered the first part of the oath. Perhaps, momentarily confused by that, Roberts then asked Obama to recite, “I will execute the office of president to the United States faithfully,” instead of, “I will faithfully execute the office of president of the United States.” While Obama later sought to play it down, Biden appeared to delight in the gaffe.”My memory is not as good as Justice Roberts’,” he joked during a swearing-in ceremony of senior White House staff on Wednesday, drawing laughter and mock boos from the audience. Obama was more charitable, telling ABC television in an interview that both he and Roberts had had a lot on their mind during the swearing-in. ”He actually helped me out on a couple of stanzas there. So over all, I think it went relatively smoothly and I’m very grateful to him.”Click here for more Reuters political coverage. - Photo credit: Reuters/Jim Young (Obama sworn in as president by Roberts on Jan. 20)
yes when the dems set up the stem cell centers with the bail out money,biden going to end up in one with all his stem cells sucked out.
Is the value of property only measured in dollars? Certainly there are other forms of harm that cannot necessarily be measured in dollars or inches. What kind of society do we live in where the wise arbitrators are unable to consider that which they cannot count or measure with a rule?.