Our Basketball Brawls, and Judicial Philosophies

Recent posts in the Best Case/Worst Case have spawned a discussion of conservative vs. liberal judicial philosophies. This struck me as an interesting topic in itself, as it presents an opportunity to hear peoples

Damn! :notworthy:


You will make an excellent writer or an excellent college professor should you ever pursue those careers. This is by far the best post I have read in a long time… Cheers :notworthy: :notworthy:

These are my statements from the other thread:

[quote]There is no rule in the US against any person having any bias. It is only in their decision making that we expect justices to be neutral, i.e., to follow the law and not their biases.

It would be just as wrong as liberal judges deciding cases based on their “liberal” values or perspective.

But, that isn’t what I meant. Comrade Stalin is correct… I meant a strict constitutionalist.[/quote]

I tend to lean strongly toward the conservative judicial philosophy.

Excellent Post, Hobbes!

I think the general rule for interpretation of a law is that the intent of the drafters is to be examined only in cases of ambiguity. As one jurist put it:

For legal purposes, ambiguity is usually defined as something like, “having more than one reasonable interpretation.” That definition can lead to a discussion of what reasonable means. And that discussion, at least in the case of the Constitution, would probably not lead anywhere very useful, to my thinking. I’d probably want to sneak off to the library to see if I could get an idea of what the framers meant, with all due respect to Justice Holmes.

Judge B might also mention that if we prevent Maoman from stopping fights in the future, then players and fans alike will continue to be harmed until the rules are amended by the legislature. That may take too much time, and result in too much aggregrate harm to too many Americans. Since playing the game fight-free is also important, and since the league seems to be heading in that direction, then my decision to let Maoman off with only a fine now is to endorse a core principle of basketball: the game relies fundamentally on the concept that each player is entitled to protection from just such an assault. (entitled to ‘privacy’, rather, to step out of your…what the heck are we doing here, playing house? Sheesh, I feel like I ought to be making sure I don’t sit on some stray teacup or dolly’s head around here)*

Judge A might rejoin that such is the price of basketball. While it’s true that legislative action may be a long time in coming, the principles of American basketball are, in the final analysis, of greater value than the aggregate harm done to players and fans alike in an interim of any length. Any such action by Maoman fundamentally changes the rules with only Maoman himself to decide when any such change is warranted. Further, any conclusion about the ‘direction of the league’ is unjustified because it assumes that the league is static and not dynamic; who’s Judge B to decide the league won’t feel differently in the future when apt legislation is actually crafted? Therefore, argues Judge A, change, if it’s to come, must come from the legislative powers that be; such change is the only valid guarantee that any given change is a true reflection of the league’s aggregate will, or ‘direction’.

My opinion is that Judge B would probably also be in favor of the DH, and that’s a mistake. Judge A wins on style alone, but I agree that some principles are worth dying for, some even worth suffering for. In fact, I think Judge B’s style of judicial activism can be held directly responsible for a lot of problems in today’s American body politic…er, basketball league. (ouch)

I note also that nowhere among the players, the fans, or the press corps is Broon Ale.

Hmmmm, where could that rascal be???.. :ponder:

[quote=“Hobbes”] TainanCowboy threw a punch at mofangongren, who called it

Liberal judicial philosophy. You shouldn’t limit yourself to the tools you have to give meaning to the law. Words have no intrinsic meaning to them. It’s all contextual. Even the judicial strict constructionists are using context to ascribe meaning to the law. They’re just limiting the context in which they are willing to use to give meaning to the law.

Having worked for a judge before, I’m fairly certain that judges (and their clerks) intuitively know the result beforehand. They statute and case check their assumptions then they back their way into their result with legalistic gymnastics (i.e. the opinion).

I tend to lean strongly toward the conservative judicial philosophy.[/quote]

…like Roland Freisler :smiling_imp: .


great post hobbes. :slight_smile:

here’s an interesting paper i came across that talks about the relationship between the court and social change:

yale.edu/lawweb/jbalkin/arti … hesus1.pdf

it’s pretty lengthy, but lots of interesting points in there.

one of his last points is that normative constitutional theories(debating strict intepretation versus liberal interpretation) are meaningless. :stuck_out_tongue:

For more information about statutory and constitutional interpretation methods, here is more readings.

  1. Principles of Constitutional Interpretation

    I tend to believe that judges in the US Federal system are all activist, whether they be Republican or Democrat. Because of well-established precedents, case law, judges don’t have much leeway to give new meaning to the law. They work backwards, starting with the intended result and then using supporting case law and case facts to get the result.

  3. An Introduction to Constitutional Interpretation

  4. Statutory Construction/Interpretation as understood by the US Supreme Court

  5. The Rules of Statutory Interpretation

Have fun :sunglasses:

[quote=“butcher boy”]
With regard to the constitution, some here claim that in constitutional hard-cases, the intention of the framers should be used as a guide. Again this is problematic. The intention of the framers cannot be known, and can only be guessed at. [/quote]

I guess you Brits don’t read things like the Federalist Papers or the papaers and etters of Thomas Jeffeson.

sullivan-county.com/identity … etters.htm
amazon.com/exec/obidos/tg/de … 5?v=glance

[quote=“Hobbes”]. . .

I happen to know spook quite well and know for a fact he would never make such a ‘two wrongs make a right’ argument. He’d also be much more likely to be up in the stands somewhere…[/quote]

Throwing cups of beer at the players. :laughing:

[quote=“Comrade Stalin”][quote=“spook”]
I happen to know spook quite well and know for a fact he would never make such a ‘two wrongs make a right’ argument. He’d also be much more likely to be up in the stands somewhere…[/quote]

Throwing cups of beer at the players. :laughing:[/quote]

Okay, you got me there, Comrade, but it’s for their own good.

Besides, I always aim wide so I don’t actually hit anyone, just shake them up a little.

Speaking of throwing cups of beer at the players, this “loose constructionist” versus “strict constructionist” issue essentially comes down to the question that when a jurist is faced with the need to adjudicate a situation about which the law doesn’t speak with clarity, what is the right and correct thing to do?

A loose constructionist’s ‘solution’ is to say, ‘based on my standing as a person of superior intellect and moral character, I shall extrapolate from the law in the direction that it needs to go.’

This philosophy of course makes one wonder whether legislatures are even fundamentally necessary or what the essential difference between the nine-member Supreme Court versus the old nine-member Soviet Politboro is.

Nyet and none, as far as I can tell.

The strict constructionist’s ‘answer’ to the question of temporal law struggling to keep pace with an ever-changing world is to maintain the divinity-student-like fiction that the Constitution is a veritable piece of scripture which contains the answer to every question if you just search for it hard enough with the requisite purity of character.

“Bartender, two beers, please.” (I’m setting one cup aside as I can see the Pigs’ coach is about to send Fred Smith in.)

When faced with the need to adjudicate a situation about which the law doesn’t speak clearly, the right and correct thing for a jurist to do in a democratic society is to note the fact, mitigate the situation in the here and now as much as possible and defer the issue to the legislature with the request they clarify the will of the people on the issue.

Not make up law to cover the deficiency nor pretend that man-made law can be a sort of scripture which pretends to be all things to all people in all situations.

Judges, of course, are generally faced with the need to do something in the here and now before things get out of hand and a mechanism doesn’t exist for getting quick clarifications from the representatives of the will of the people.

The overall solution then is to set up a supra-legislative process whose purpose is to assist jurists in a timely fashion when they’re faced with inadequate law. We can invent a nice name for this process based on a translation of 'What saith the People?" into the Latin. In this age of instant global communications, that should be very easy to implement – if the will is there.

a great test of judicial philosophies will come with the case on medical marijuana before the court right now.

here’s a nice article on the case:


as a libertarian federalist, it’s no surprise where i stand on the case. :wink:

The framers are fine to dig into but even they had a lot of arguments in their day, changed opinions over time, and perhaps would have different views of things if they had existed within today’s society. Owning slaves and treating women like chattel were well established in America at its founding, but times change.

The U.S. Constitution and its interpretation has had a messy existence but still better than anything else with which we probably would have come up. A justice system, to step aside from cynicism and the uncomfortable fact of legal bills for a moment, has to be “just” – to offer a level of fairness to its people.

On the road toward fairness, the original framers may have agreed that “all men are created equal” but it took decades before the definition of “men” in that sentence included blacks, included women, included non-landowning whites, included persons of all races over 18 years old, and so on.

Arguments get distorted along the way about what’s “fair” and what the slippery slope of certain rights are. I’m sure there’s cancer patients who realize that the stoned college kid working the NORML booth in the multicolored beret doesn’t help their case too much with the outside public. For myself as a gun owner (in the U.S.), I don’t appreciate machine-gun-toting wackos trying to dominate the 2nd amendment debate with their stories of “black U.N. helicopters”. (I think we can all agree that the NAMBLA guys and the Catholic Church aren’t helping each other very much these days.)

That said, the major constitutional issues will be resolved as they always are – with both sides saying how their view of things is in accordance with long-established principles and traditions.

More interesting reading about statutory intepretation at work.

On Second Thought, Court Finds, a Law ‘Makes No Sense’

[quote] {T}he court ruled that the sentence was invalid because the document signed into law by President Bill Clinton contained a phrase that was illogical.

The law said that defendants like Mr. Pabon … should be fined or receive a mandatory minimum sentence of 10 years “and both.”

The appeals court said this language “makes no sense.”

“That bill does in fact contain the ‘and both’ language,” Judge Jos

interesting article today about a recent supreme court decision:

washingtonpost.com/wp-dyn/co … 01420.html

what might be surprising to some people is the nature of the case(taking property from poor people and giving it to rich people) and which justices fell on which side of the issue. i think it’s a great example of how the “strict vs. liberal” interpretation issue does not in many ways corrolate to “conservative vs. liberal” politics.

This does seem to be an interesting development, Flipper. I haven’t read the actual opinion or dissent yet (only newspaper articles about them) so I am hesitant to say too much. My initial impressions, however, are: (1) that I genererally lean against the decision made by the court, and (2) that you are correct that the decision is a good illustration of the difficulty in applying “standard” political labels to judicial decisions.

On the “taking from the poor and giving to the rich” aspect of the decision, however, I don’t agree with you that this decision contradicts usual conservative vs. liberal labels. For me, the “liberal” position is broadly very much in favor of taking from the powerless and redistributing to the politically well-connected friends of the elites. So it is hardly surprising to find the liberal members of the court arguing that “These ignorant poor people just don’t know what’s really in the common good. Let us take their land and decide what’s best for it – we promise we’ll redistribute the wealth to those who really need it.” Nor is it surprising to find that the property taken winds up not in the hands of the most needy, but in the hands of those with political influence (i.e. money). That is the expected and natural consequence of activist government. :idunno:

(I am aware, btw, that many on the left genuinely believe that they are fighting for the “little guy” – I just don’t see that result occurring in practice much myself.)