kjent- Sorry, but you didn't make your case very well.... Basically, this is what I get from your 2000 word spiel.. Congress gives other branches of govt the power to make 'rules', and they have the same weight as a law from Congress. This makes perfect sense to me and in no way debunks the Sep of Power. You aso say that theSC will rule as they wish. Ok, but do they WRITE laws ? No... But they bend the laws to fit their agenda - well, the liberal judges do..... However I do agree that the courts duty is to the litigants first. So what I guess I hear you saying is that it's better that the courts bend the law as they see fit in order to protect the litigants, and then if the citizens don't like it, have the Congress or whoever write a new law that closes the loophole that the SC just opened. Is that about right?
No need to be sorry. I'm satisfied that my presentation of the Separation of Powers issue is a reasonably accurate description of how the government operates. Anyway, to directly respond to your question, yes, the court's primary duty is to see that justice is done for the litigants. However, it is not the case that Congress can simply close every loophole that the court creates. Where the Supreme Court directly overrules a Congressional Act as unconstitutional on its face, Congress' only recourse is to amend the Constitution itself. But, other than in that situation, Congress can pass new laws to more narrowly constrain the courts, in order to hopefully do the will of the People.
Is it really a court's primary duty to do justice to the litigants? This concept is what produced the adage "hard cases make bad law." In a common law system such as ours, the court, particularly an appellate court, is not merely deciding the case between the parties. It can also be formulating an interpetation that will bind or at least guide other judges and courts. Judges are only human, and their concept of "justice" can be distorted by sympathy, group identity or a myriad of factors. Our capital punishment case law is a perfect example. Individual judges search for reasons to avoid the death penalty, often on clearly spurious constitutional grounds. The death penalty was firmly accepted when the Constitution was ratified, and there is nothing in it to suggest that capital punishment is in any way unconstitutional. Yet, it takes 20 years of appeals to execute hardened killers. We have the spectacle of Justices relying on foreign legal authorities to rule that something that was clearly accpeted by the Drafters and the state legislatures is somehow prohibited by the Constitution. Then the very same justices have the temerity to turn around and complain that their "independence" is threatened if anyone calls them on their misconduct.
The Supreme Court, by my view, exists as a check to the legislative branch, both federal and state, and to some extent a check to executive branch. Any law that is questioned, may eventually appear before the Supreme Court. So why shouldn't a law that bans abortion appear before the court? Where in the Constitution does it say that banning abortion, denying a woman the right to choose, is legal? It is logically possible, that any law that restricts the freedom of any individuals choice, where that choice cannot be shown to harm society, is unconstitutional.
You asked one rhetorical question. My answer is an unqualified "yes," it is the court's primary duty to do justice to the litigants. The fundamental purpose of a court is to provide a resolution to a controversy between opponents, so as to avoid resolution of the dispute by resort to physical violence. Congress makes laws; the President enforces the laws; the Courts apply the laws to individual litigants, and order a remedy. However, in the real world process of government, there's considerable leakage of authority between the three branches. All three branches make and enforce laws, even though, technically, they're not supposed to do this. If you don't want this to be so, then demand that your representatives amend the Constitution. Trying to pack the court with those who find originalism/strict construction to be the only "correct" means of jurisprudence is as fundamentally unfair to the People as to pack the court with natural law proponents, because the result is the same -- nine people with a personal view of how the world should be, get to determine the outcome for the rest of us, absent voter approval. Pragmatism, on the other hand, does exactly what courts are supposed to do -- resolve the controversy between the parties before the court.
The problem with your arguement here is that on one hand, you seem to be commenting in a negative way that there is 'considerable leakage' of authority. And on the other hand, constructionists desire is only to more clearly delineate the Sep of Powers, which doesn't seem to be unconstitutional at all, regardless of your claims that we haven't operated this way, ever... But you still seem to want to sell the theory that this 'considerable leakage' is a good thing. But taken to its' extreme, couldn't the courts' running amok with the law lead to a fasist like state, where the court decides with impunity what to do? Isn't this what liberals would like to happen ?
Please do not criticize the government or Bush, you are encouraging the terrorists and putting the troops in danger.
kj at first I thought you were just making an argument now I am seeing you are serious. Would you please provide support for your definition of pragmatism. And then would you please provide support for you view that it is the courts duty to due justice for the litigants regardless of case law or precedent. (or the concern for setting precedent.) I just can reconcile your belief with my experience in appellate courts and appellate arguments. Please cite me some case law so that next time I have an appeal after someone else lost at trial I can argue that the court can review the case de novo and due justice.