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Tuesday, July 03, 2007
Bill Murchison :: Townhall.com Columnist
A Victory For Judicial Restraint
by Bill Murchison
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That Americans, after all these years of tearing their hair out and trying everything in the wide world else, still can't iron out their racial predicaments tells us numerous things we need to understand.

Here's one: that the federal courts (not for want of gratuitous application to the job) seem no nearer now than 30 years ago to resolving these tricky and complex questions.

Or haven't we noted the U.S. Supreme Court's role in ginning up these discussions this summer? Or the divisions a divided court stirred up in limiting race as a factor in student placement?

The court last week commanded Seattle and metropolitan Louisville to stop promoting racial "diversity" in the classroom by assigning students on the basis of race. Five justices said programs directed at racial balance were unconstitutional; four justices said (in essence) baloney, all Seattle and Louisville have sought to do is promote integration and stand in the way of "retrogression."

The learned justices made known how agitated they were with each other. "This is a decision that the court and the nation will come to regret," said Justice Stephen Breyer. Replied Justice Clarence Thomas: "Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure."

From outside the marble temple where our judicial demi-gods tax their brains and test their tempers arises a feeble squeak of a question: Do we really need to go on this way? Do the courts -- in other words -- have to dot every social "i," cross every cultural "t," from school enrollment to abortion policy to the propriety of Nativity scenes?

Of course they don't. They just do it. That's the galling, not to mention the self-defeating, part. Modern federal judges tend to believe they sit at the right hand of God the Father Almighty. No wonder they rarely get it right.

Clarification: The times they get it right tend to be the times they modestly acknowledge, by howsoever slim a margin, their own unsuitability as universal, all-purpose arbiters, instructing the elected branches of government what to do.

Of course they don't put it that way. We get the point anyhow. The justices are cutting the voters, and their elected representatives, a little slack, following the lead of the Founding Fathers, who thought they were setting up three separate, equal and coordinate branches of government.

The Wall Street Journal credits Chief Justice John Roberts during the court's late term with loosening the saddle on the court's high horse, persuading just enough colleagues that this question or that one "didn't (in the Journals' words) belong before a judge at all."

A pre-eminent instance of such forbearance is last week's school assignment decision. Fifty-three years after Brown v. Board of Education broke up officially prescribed school segregation, the court can't free itself entirely from the notion it has to break up purely coincidental segregation.

In the '70s the high court commanded forced busing for racial balance. Their imperial highnesses hadn't considered that students with a way out of such a mess would take it. Private schools, the suburbs, home schooling -- white students headed for the door, toward the better schooling they were sure they would find in schools not run by the courts. School segregation today is more widespread than before Brown. Yet judges keep trying.

Judicial restraint is the name of the doctrine that says they shouldn't keep trying -- that they should avoid undertaking more than they are called on to do as members of a government widely believed to function by checks and balances, and a sense of restraint.

Restraint isn't, to say the least, a very 21st century notion -- have you taken in YouTube lately? Nor does it go down well with unelected, semi-immunized officials like judges: such judges as can't get over believing they know better than the rest of us put together.

Which they don't. How educational, how just plain nice, to see them get taken down a peg -- by their own kind.

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About The Author
Bill Murchison is a senior columns writer for The Dallas Morning News and author of There's More to Life Than Politics.
 
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youdemsmakemevomit
It doesn't seem like your laughter, mystery person, is sane. It's like you believe that if you say it enough it will become a self-fulfilling prophecy. This article is about the Supreme Court not Bush!

And There is a Connection
The two comments about BushCo and "the Supreme Court not Bush" have a whole lot in common. If it were not for BushCo's selection of Alito and Roberts there would be no new developments from the Court. It would be one more from the "swinger" Sandra Day O'Connor. (Although BushCo had to fight us common people to void the selection of Harriet Meirs.)

Court decisions (andsidenote toYOUREPBS)
This court is more what a conservative would want: one that weighs any decision in light of the constitution, rather than one that strays into social engineeering in spite of what the constitution says (or doesn't say).
One may not like a given decision, but ought to respect it if it is made on strictly constitutional grounds. (hey, there are people whose freedom of expression I'd like to limit, but it wouldn't be constitutional, and I would hope the SC would not decide in my favor!)


YOUREBUBS: it was the founding fathers who gave the President the power to commute or pardon. I doubt they're rolling in their graves.

New Supreme Court
We are very fortunate that we have what we have in the Supreme Court. There are many that like judges that liberally interpret the law in that they can do a lot of good by writing law from the bench. What they fail to understand that this alleged power to do good in this manner can also be morphed into power to do evil.

Politics have no place in the courtroon. Strict adherance to the law.

Part of the law is that the President can pardon defendants and convicted individuals carte blanche. That is constitutional law.

Libby was convicted of lying about a crime that never occurred. One of Clinton's cronies, Sandy Berger, was convicted of stealing classified documents and he got less than a slap on the wrist compared to Libby.

cut SCOTUS some slack
As much as SCOTUS takes an imperialist attitude at times, we cannot blame all of their meddling on them. A great deal of these decisions they make should have been handled legislatively, but our Congress likes to kick the can down the road, and leave the tough decisions to someone else, namely SCOTUS. They leave decisions to the Court because any decision made there provides our cowardly reps cover; they don't have to tackle tough problems or issues when they know they can leave it to the Court to decide, and take the heat for. That's a pretty good deal Congress has going; they have turned the SCOTUS into a built-in fall guy!

SCOTUS and Diversity
The High Courts obsession with diversity is troubling. There is no Constitutional provision, nor even mention of diversity. There is no objective evidence of any true value in diversity. Yet the High Court routinely references a diversity as a "compelling reason" for racial discrimination. Even in this "conservative" ruling, the High Court protects "diversity" in other instances.

Ironically, to find value in diversity is antithetical to the belief in equality. If one truely believes in racial equality, it becomes axiomatic that there can be no value in racial diversity. That is, if A=B=C ; then AAA = BBB = CCC or any combination thereof. If one believes that changing an "A" for "B" changes the value of the set - then one, by definition, believes in racial inequality. That is; such thinking is "racist."

Kudos to Flagwaver!
Great post! Congress, & the vague farreaching legislation they write, is indeed a big part of the problem. Much of the Federal Code of Laws now consists of invitations for courts and bureaucrats to legislate, not actual laws. Considering the critical issues before us, such as free speech in election campaigns, and permanent energy rationing ('Global warming'), we can't afford to tolerate this sort of approach any more.

Look at the recent bill that vaguely outlawed excessive gasoline prices but offered no hint of what exactly constitutes an excessively high price. A valid statute must notify the citizenry whaat they must do or not do in order to comply, but ever since the Sherman Antitrust Act Congress has been prone to pass laws that only have concrete meaning case-by-case as ruled by a bureaucrat or judge after the fact. The Constitution forbids ex post facto laws, but that has been ignored, too. We can expect gasoline shortages if this thing goes into effect.

The 2003 decision that upheld the McCain-Feingold gag law is a great example of this. Congress passed the thing in order to look "pro-reform" while squelching their critics & challengers, but many Congresspersons hoped the SCOTUS would nullify it. I honestly think SCOTUS was sending Congress a message that they weren't there to cover Congress' political tails!

If we could somehow get a doctrine or Constitutional Amendment that says that if a law is ambiguous or leaves any discretion, that uncertainty must automatically go in favor of the defendant or respondent, a lot of bad laws, inconsistent and arbitrary enforcement, and much of this "interpretation"= legislating-from-the-bench, would effectively disappear. Congress would have to say plainly what it intends to require or prohibit in a statute to have it enforced.

Melting pot, not diversity
is what made this country as great as it is and that means that it took the best parts of each culture and melded them into one American culture. We should be proud of our heritages, but must be uni-cultural to survive as a nation.

Libby decision by President Bush
Does the first responder remember who set the precedent for obstructing justice by lying under oath and never doing a moments time in prison?

Thanks Bill for the observation of Justice Thomas that made my day concerning the real topic of your article.

A wonderful case
Murchison makes a wonderful case for issues that don't belong in a Supreme Court at all.

What happens educationally in Seattle or Louisville should be decided at the state level. Just like Congress, the states too multitudinous enact laws and how an individual community or county treats its educational deliverance should be argued, fought and decided at the state level.

YRMML facts
Is a 15 year-old ignoramus whose IQ is equal to his shoe size!

How about Atlanta's black only community
Does the position of the SC and Congress provide exception for the black only subdivisions in Atlanta that won't let others into their exclusive neighborhood and its public schools for children only of wealthy folks who must also be black...or at least brown skinned?

Do these children have to suffer being bused out and others in to achieve the only recognized diversity of consequence- race as defined by socialist idiocy?

Diversity Fetishism Sucks
Bravo to SCOTUS. What must be recognized is that governement cannot engineer or coerce individuals into being fond of/ensconced with those that are alien to them. "Birds of a feather flock together"; to try to legislate that birds of different feathers must violate their own natural preferences--in order to enforce some dystopian delusion that diversity trumps all essential coherence--is so sickening and damaging to community cohesion that we are seeing a near-total breakdown in all our social systems. Diversity fetishism and multiculuralism has even taken precedence over national security, wherein Muslim terrorists are allowed to openly breed and metasticize their verminous legion under the very noses of the Western democratic do-gooders, who mistakenly think that if we simply tolerate such a murder cult as Islam within our midst, the Muslim scum will miraculously be so impressed with our benevolence and generosity that they will suddenly drop their knives and bombs, and join us in our delusions of diversity as the goal of all mankind! Diversity, where and when it occurs naturally, is fine and even desirable for purposes that actually require harmony among disparate races/religions/cultures...but to force "diversity" on us as some kind of magical goal for its own sake is the acme of Marxist tyranny. Here's to the end of such pathological oppression by the state. Let freedom ring.

Forced busing was a bad idea.
I was one of the first victims of forced busing back in the seventies, and I can tell you that it was a bad idea. All it did was cause a massive "white flight", and it ultimately killed the school system in our city.

That's not to imply that racial integration was a bad idea. However, I believe it could have been accomplished in a more sensible way. For instance, before busing, schools in our city already had several black teachers on faculty in white schools. That alone helped white kids to see that African-Americans are not monsters.

A more gradual approach to integration would have taken longer, but it would have had a more lasting effect. In the meantime, the money that was used for busing could have been used to upgrade schools in black neighborhoods.

It's been more than thirty years since forced busing, but schools in the city where I grew up are still almost as segregated as they were in the 1950's. This is progress?

Hey, Don't Tread on Me
There is a judicial doctrine called "void for vagueness" which would operate to invalidate the law you cite. But one must find a plaintiff who is actually injured by the law, and they must sue and get the Supreme Court to accept hearing the suit. Void for vagueness is based on the Fifth Amendment's notion of notice: citizens should be able to read the laws and reasonably interpret what is forbidden for them to do so that they have "prior notice" before they intentionally do a bad act. Another doctrine is called "overbreadth" where the law is accused of legislating so broadly that is steps on constitutionally protected freedoms. I agree with you about the anti-gouging statute (which must have Ayn Rand rolling in her grave since she predicted this kind of legislation in her book Atlas Shrugged). I also agree with you about McCain-Feingold. It mystifies me why this bill was upheld by the Supremes in any shape or form. The First Amendment protection of free speech was specifically included to cover "robust political speech" which is the very kind that McCain-Feingold prevents. However, thanks to the Supreme Court, McCain-Feingold lingers on and obscenity is now protected speech. This can be blamed on a liberal court that indulges in social engineering. It is good to have Alito and Roberts on the Court. We need one more solidly conservative justice to start kicking the ball back to Congress or the states.

Funny Thomas "quote"
Who do you figure really wrote it? $50 says it was some Regent University Law 1L who couldn't pick out Anita Hill in a police lineup.

Randy
One more conservative justice? Thanks to the abysmal failure that is the Bush administration, you can look forward to Democrats in the White House making SC nominations for at least eight years.

Murchison, you ABSOLUTE IMBECILE
Murchison wrote: "Do the courts -- in other words -- have to dot every social "i," cross every cultural "t," from school enrollment to abortion policy to the propriety of Nativity scenes? Of course they don't. They just do it."

The courts, in the ball-squeezing grip of liberalism, have been weaving a gordian knot of rules and guidelines for more than 50 years on most of these topics. Now that we've FINALLY got the Court in the hands of men who understand the Constitution, it will take some time to unwind the knot.

In other words, Mr. Murchison, while the good guys are working hard to restore the Constitution to its proper footing, SHUT THE HELL UP.

soothsayer
Get a grip, man. It was in Thomas' concurring opinion. Odds are, he wrote it himself.

And just out of curiosity, why would ANYBODY want to pick Anita Hill out of a police lineup? Her entire claim to fame is a false accusation of a decent man, in a vain attempt by Sen Simon (D, IL) and/or others of his ilk to keep an anti-abortion black off the bench.

inkling
You make it sound like Thomas writes his own opinions. How cute!

soothsayer
And you think Thomas doesn't write his own opinions -- why? Because blacks aren't intelligent enough to write their own opinions? Is that what you think?

Somewhere, deep down where they won't admit it to themselves, all Democrats think this about black Republicans. Ann Coulter pointed it out first: Democrats thought Bush was the stupidist man on the planet, thought that Bush was the parrot of his advisors, thought his advisors were all brilliant, devious felons plotting the destruction of Constitutional liberty, but they finally found somebody they could say was actually stupider than Bush, and was BUSH'S parrot -- and it was the BLACK CHICK.

Racists to the core, all Democrats.

SunThe1
You want law to be made based on the Constitution and not to be "social engineering". When the Supreme Court recently banned late-term abortion, the justices gave one of the reasons as prevention of future regret by women who might have such abortions. I have looked through the Constitution and I don't find a reference to this. Could you provide one? Many thanks.

Right wing judges are really activists -
They've proven this to 80% of Americans by rolling back precedent after precedent. That is the true definition of judicial activism, and the right wing are masters at the game. What hypocrites, it boggles the mind.

Feds should keep out
As someone mentioned earlier, this is a state and local issue and the feds need to stay out of it. That's first and foremost. The Court did the right thing here!

Forced integration (or busing. whichever is preferred) will never improve our education system in any way,shape,or form. Who decides what students go where and how many? A bureaucrat that doesn't have the foggiest idea as to what they're doing. And what are we accomplishing in the meantime? Not a thing. Nothing.

How 'bout spending the millions of dollars that are wasted on this type of nonsense in school districts across the country on actually providing a quality education regardless of what neighborhood that the school is in.

And don't let anyone tell you that there isn't enough money. Has anyone noticed the rapid increase in property taxes most folks are dealing with these days? Well, 75% of those tax dollars are for the school system.

Jefferson quote
Progressives/liberals just love to quote Jefferson on Christianity. It goes without saying that they cherry-pick the quotes, of course.
But on their beloved activist judges, Jefferson had this to say:

"The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." [Sept 6, 1819]

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarcy...The Constitution has erected no such single tribunal...knowing that to whatever hands confided, with corruptions of time and party, its members would become despots." [Sept 28, 1820 letter to William Jarvis]

"The germ of dissolution of our federal government is in the constitution of the federal Judiciary."

"The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric." (1820)

...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. When all government... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." (1821)

"The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch."

Oh, and about that Christianity question:
“The doctrines of Jesus are simple, and tend to all the happiness of man.”

“Of all the systems of morality, ancient or modern which have come under my observation, none appears to me so pure as that of Jesus.”

"I am a real Christian, that is to say, a disciple of the doctrines of Jesus." [Letter to Benjamin Rush April 21, 1803]

Thomas Jefferson wasn't perfect, but he was pretty wise.

lilly
I did not say that all decisions are made solely on constitutional bases...clearly they are not.

Many things are not clearly spelled out in the constitution, and thus require interpretation. But this particular decision (using race as a preference--in this case it was the only factor being used) was a pretty good example of something unconstitutional, in spite of the fact that four justices would rather override the strictly constitutional in preference for what they view as a "social good".

yankee
What precedents specifically have been "rolled back"?

Keep in mind
I think it's useful to keep in mind that the Supreme Court is not making laws. They are hearing cases where the constitutionality of SPECIFIC laws or practices have been challenged. The practice in this particular question is unique in that race was the sole factor used for allocating people to schools. In other cases, it has been only one of several factors.

I'm pointing this out because many who post here seem to attribute too much motive to particular rulings.

40 + years
of a liberal SCOTUS handing down rulings dedicated to 'social engineering' wasn't enough for the left wingers. It seems they won't be happy until every member of the court, every ruling handed down goes their way.

Justice Breyer (and others) think of the Constitution as a "living breathing document" and are bent on introducing "international law" to settle cases here. This is really what is at stake in the upcoming election.

For as upset as I have become by the current administration I can honestly say at least (sans the Meiers episode) President Bush has chosen wisely for his SCOTUS appointments. It is about time the justices decide SOME cases in a conservative manner and see the Constitution for what it is, a well written document that has served us well for over 200 years and will continue to do so as long as we adhere to its principles.

Living in Massachusetts I know first hand the dangers of legislating from the bench and how politicians can and will kick the can down the road (Thanks alot Mitt)...it truly bites.

And about "diversity"
I recently heard a professor who did some research on the topic (but because I was driving at the time and listening on radio I missed his name) and his findings were remarkable. So much so that he withheld the results while the "Immigration debate" raged in the Senate so as not to throw a monkey wrench into the Liberal's main argument....diversity is not just 'over-rated' it is contrary to everything we are being led to believe.

The end result of the liberal professors research was this...diversity doesn't work in a culture such as our own. As one poster said earlier, "birds of a feather". He found that in diverse neighborhoods people had less to do with their neighbors because of it, they tended to shy away from becoming politically involved and active in community affairs and a host of other drawbacks.

His conclusion was that social engineering in a 'melting pot' culture was actually counter-productive. Go figure!
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