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  1. #1
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    Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    I live in Utah, a state in which about 70% of voters lend their support to the Republican presidential hopeful each election and where the dominant religion (Mormonism or the LDS church) is a hugely influential and powerful presence. It is a state in which the belief that Utah would be "the last to fall" on the issue of gay marriage was proudly held by many and generally accepted by the rest. But a state court ruling last December made Utah one of only a handful of states (a growing handful) where gay couples could get married. While that decision was quickly stayed (staid?) and appealed, hundreds of gay couples who call Utah home were able to be lawfully married in the beehive state - perhaps the most conservative and anti-gay-marriage state in the entire union - for a few weeks last year. The tenth circuit court of appeals has recently reaffirmed the lower court's ruling that the voter approved (2004) Utah constitutional amendment 3, defining marriage as being strictly between a man and a woman, is unconstitutional. The tenth circuit court's decision will not be going into effect immediately; instead, implementation has been put off until after a higher court rules on the inevitable appeal.

    So I guess the following questions come to mind:
    Is this a case of judicial activism?
    Is judicial activism necessarily bad? Desegregation and other civil rights initiatives that lacked popular support but were pushed through by the judiciary are often touted as examples of judicial activism gone right, but even in these cases could the judiciary be said to have overstepped their bounds?
    The voting citizenry passed Utah constitutional amendment 3 by a landslide in 2004, but the courts at two levels (so far) have ruled that the Utah State Constitution violates the United States Constitution. Amendments to state constitutions are, of course, subject to federal law as set out by the United States constitution - the supreme law of the land - but should the overwhelming support for the amendment by the voting citizenry of Utah have played in to these courts' decisions? A democracy draws authority from its people, but a constitutional democracy cedes power to its people only so far as the bounds laid out by its constitution are never breached. What do you think?
    Will this be the case that makes it to the Supreme Court? Will it force that court to finally codify an interpretation of the Constitution transforms or at least makes clear the legality and constitutionality of gay marriage in this country?
    Is there a place for judicial activism when popular opinion is behind the times?

    I'm sure there are more questions to be asked and more angles to consider. I'm interested to hear from and discuss the topic with anyone with an example, opinion, or something to add. I haven't put this in a debate subforum because I don't know that I can confidently claim a specific position at this point, but I think the topic is ripe for discussion, especially in light of what's been going on in my home state.


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  3. #2
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    First, what is Judicial Activism?

    "Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law."

    http://en.wikipedia.org/wiki/Judicial_activism

    So if this was a case of Judicial Activism (JA) it meant that the judges ruling was more influenced by their own personal desire to see gay marriage legalized than an adherence to legal principle. So of course to make the case that this was indeed JA, you have to show that the judges had that kind of motivation. I very much doubt that this was JA or that anyone can make a solid case that it was.

    As best as I can tell, the constitutional case for legalizing gay marriage anywhere in the US is overwhelming so the notion that any judge will rule a gay marriage ban unconstitutional while secretly believing that it's not unconstitutional seems very unlikely.

    And of course an unconstitutional law cannot stand even if it has popular support so if a gay marriage ban is unconstitutional it doesn't matter, legally, whether a majority of the people in a given area support the ban.

    And since the SCOTUS ruled that The Defense of Marriage Act was unconstitutional I would guess any clear gay marriage case will be ruled in a similar fashion.
    Last edited by mican333; June 26th, 2014 at 08:54 AM.

  4. #3
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    I think that the idea that the Supreme Court (either of the Federal government or of State governments) won't engage in judicial activism of some form is really quite silly.

    The simple fact of the matter is that Justices have to make rulings on very complex issues, and it is unreasonable to presuppose that former rulings (possibly from a hundred years ago) or even the Constitution alone can actually give constraining or relevant information on making rulings. The US Constitution itself was written somewhat vaguely on purpose; it's not a computer algorithm designed to handle every possible case and throw every exception, and the state constitutions are really any different. The reality is that the Supreme Court (again, Federal or State) is needed because the Constitution, state constitutions, Federal laws, and State laws are insufficient to give unambiguous, relevant, exact rulings. At some level, the judicial branch exists to try to provide impartial rulings, but pure "impartiality" isn't actually possible when civilization requires the courts to rule on such a wide array of issues that affect a wide array of people. At the end of the day, the judge will have an opinion based off of their own reasoning, and at the end of the day that's also what we pay them to do. The hope is that they're going to use an analytical, evidence-based, secular, impartial-as-possible, and politically neutral rational, but in reality this is still going to be informed by their worldview. It literally couldn't be otherwise, unless we wrote computer programs to decide laws, and that smacks of an impossible and probably even deleterious idea.

    I'm not saying that this is ideal or that this is terrible, but it is a reality. Sometimes, I think that the judges are excellent for using the reasoning that they have (Ginsburg) and sometimes I think that they are scumbags for doing so (Scalia).
    "Those who can make you believe absurdities, can make you commit atrocities." --Voltaire

  5. #4
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by GoldPhoenix View Post
    The hope is that they're going to use an analytical, evidence-based, secular, impartial-as-possible, and politically neutral rational, but in reality this is still going to be informed by their worldview.
    But that does not automatically make the judge guilty of Judicial Activism. Judicial Activism is not just any personal beliefs being present in a ruling but the ruling being based more on personal or political beliefs than on existing law.

    I think that renders our differences as basically semantic - a disagreement on the definition of Judicial Activism.

    But I would say that Judicial Activism as I understand it - which is a judge ruling based on personal beliefs more than good legal principle - is uniformly wrong but the ruling in question does not qualify as such (or at least no one has given us reason to think it does qualify).

    In other words if the judges ruled primarily on the basis that the ban does violate the constitution, that's fine. But if the judges ruled primarily on their desire to see gay marriage legalized despite any legal reasoning, that's Judicial Activism and wrong.

  6. #5
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by mican333 View Post
    But that does not automatically make the judge guilty of Judicial Activism. Judicial Activism is not just any personal beliefs being present in a ruling but the ruling being based more on personal or political beliefs than on existing law.

    I think that renders our differences as basically semantic - a disagreement on the definition of Judicial Activism.

    But I would say that Judicial Activism as I understand it - which is a judge ruling based on personal beliefs more than good legal principle - is uniformly wrong but the ruling in question does not qualify as such (or at least no one has given us reason to think it does qualify).

    In other words if the judges ruled primarily on the basis that the ban does violate the constitution, that's fine. But if the judges ruled primarily on their desire to see gay marriage legalized despite any legal reasoning, that's Judicial Activism and wrong.
    I'm saying that the lines that people draw in the sand on what is considered "existing law" and new territory are not as black and white as people naively think it is. If you think that it is, then I suggest that you read the dissenting opinions of Ginsburg and Scalia when either of them lose, and keep in mind that these are two people who went to Harvard Law school. The notion that personal opinions can be separated from legal reasoning is delusional. There's no actual objective standard for the law; not for the people who write laws, not for people who vote in laws, and not for people who interpret the laws. It's an entirely human endeavor, and whether or not you draw the line at some shade of gray and call it "Judicial Activism" doesn't really change that.

    Unless you're crowning a king or pronouncing a national religion, you can probably make a legal argument that can pass muster for your views, but why you have those views probably has nothing to do with the law. And actually the logician and mathematician Kurt Goedel claimed that he'd found a legal loophole for being able to declare a kind in the USA, so who knows if that's even true.
    "Those who can make you believe absurdities, can make you commit atrocities." --Voltaire

  7. #6
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by GoldPhoenix View Post
    I'm saying that the lines that people draw in the sand on what is considered "existing law" and new territory are not as black and white as people naively think it is. If you think that it is, then I suggest that you read the dissenting opinions of Ginsburg and Scalia when either of them lose, and keep in mind that these are two people who went to Harvard Law school.
    I'm familiar with Scalia's dissent on Lawrence vs. Texas and IMO it is a ridiculous argument, basically a slippery slope fallacy and I would say that he was engaging in Judicial Activism.

    But the fact that he does it does not mean that everyone else does it as well.

    Quote Originally Posted by GoldPhoenix View Post
    The notion that personal opinions can be separated from legal reasoning is delusional. There's no actual objective standard for the law; not for the people who write laws, not for people who vote in laws, and not for people who interpret the laws. It's an entirely human endeavor, and whether or not you draw the line at some shade of gray and call it "Judicial Activism" doesn't really change that.
    If you are arguing that it's ALL judicial activism, I disagree. I'm not saying that you are wrong about opinion always being present but Judicial Activism is more than that. JA is one putting one's opinion above solid legal reasoning. Again, the definition I forwarded earlier.

    "Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law."

    I believe if I were to rule on a gay marriage case, I would not be engaging in JA. I would consider the FACT that there is a right to equal protection of the law and then use LOGIC to conclude that bans on gay marriage deny gays that right and therefore rule that such bans are unconstitutional. If you want to say that my opinion on matters is somehow present in my legal decision-making, I won't argue otherwise. But I will maintain that my legal reasoning is primarily based on fact and logic more than anything else and therefore I am not engaging in JA.

  8. #7
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    JA gets charged any time a judge does something that seems to go against popular opinion or established tradition. Basically if a Judge changes something people feel has already been established it is activism.

    Of course this is a pretty narrow view and not much in keeping with actual legal tradition or practice.

    Mind you that can be a sign of the real deal, which to my mind would be a Judge with a personal extra legal agenda and who intentionally end runs existing law to pursue that agenda. Generally judges like that don't rise too high, at least not if they are transparent about it.

    I think the grey ground here is that any judge can craft a theory of law and cite a body of law in a way that synchronizes their personal agenda with what they feel to be an honest reading of law. It is hard to know how honestly they come by such a view or even if honestly attained, if it none the less is a perversion of the ideal of "blind" justice.
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  10. #8
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by mican333 View Post
    I'm familiar with Scalia's dissent on Lawrence vs. Texas and IMO it is a ridiculous argument, basically a slippery slope fallacy and I would say that he was engaging in Judicial Activism.

    But the fact that he does it does not mean that everyone else does it as well.


    If you are arguing that it's ALL judicial activism, I disagree. I'm not saying that you are wrong about opinion always being present but Judicial Activism is more than that. JA is one putting one's opinion above solid legal reasoning. Again, the definition I forwarded earlier.

    "Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law."

    I believe if I were to rule on a gay marriage case, I would not be engaging in JA. I would consider the FACT that there is a right to equal protection of the law and then use LOGIC to conclude that bans on gay marriage deny gays that right and therefore rule that such bans are unconstitutional. If you want to say that my opinion on matters is somehow present in my legal decision-making, I won't argue otherwise. But I will maintain that my legal reasoning is primarily based on fact and logic more than anything else and therefore I am not engaging in JA.
    My problem is that you want a nice, clean, clear-cut line that doesn't exist. This is sort of the same fallacy that libertarianism labors under; just because you can define something doesn't mean that the definition and the reality have a clear-cut, discernible 1-to-1 correspondence. We should be able to agree to agree that instituting a state religion is against the Constitution, but the further we go from the things that were written about 228 years ago, the murkier things get. Legal precedence is nice and all, but again I really doubt that you're actually going to remain consistent on this position.

    Dred Scott vs. Sandford is a legally absurd line of reasoning, too. However, it not only was ruled that way, it was upheld as the legal precedent and would have continued to remain the legal precedent --literally-- if it weren't for the 14th Amendment.

    And for that matter, the whole notion of selective incorporation --the precedent for Brown v. Board, Miranda v. Arizona, etc, were founded upon-- is not really based on anything literally written in the Constitution. But there is an interpretation of the Constitution which allows for it.

    Does that make it judicial activism or just a logical choice that could be made when interpreting the 14th Amendment? Is the original precedent always the natural and logical precedent to follow?

    If Christianity and the Bible (Or Islam and the Q'uran, or Judaism and the Talmud, etc) have taught us anything, it's that interpretations are like ***holes --everyone has one.


    Quote Originally Posted by Sigfried View Post
    JA gets charged any time a judge does something that seems to go against popular opinion or established tradition. Basically if a Judge changes something people feel has already been established it is activism.

    Of course this is a pretty narrow view and not much in keeping with actual legal tradition or practice.

    Mind you that can be a sign of the real deal, which to my mind would be a Judge with a personal extra legal agenda and who intentionally end runs existing law to pursue that agenda. Generally judges like that don't rise too high, at least not if they are transparent about it.

    I think the grey ground here is that any judge can craft a theory of law and cite a body of law in a way that synchronizes their personal agenda with what they feel to be an honest reading of law. It is hard to know how honestly they come by such a view or even if honestly attained, if it none the less is a perversion of the ideal of "blind" justice.
    Agreed, except that I don't think that justice is blind, we can really only hope for justice to be farsighted. No ruling exists in a vacuum. There's only more impartial and less impartial.
    "Those who can make you believe absurdities, can make you commit atrocities." --Voltaire

  11. #9
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by GP
    Does that make it judicial activism or just a logical choice that could be made when interpreting the 14th Amendment? Is the original precedent always the natural and logical precedent to follow?
    That's the whole question of jurisprudence and statutory interpretation. The people who answer that question rely on their legal experience and expertise.

    If Christianity and the Bible (Or Islam and the Q'uran, or Judaism and the Talmud, etc) have taught us anything, it's that interpretations are like ***holes --everyone has one.
    Surely you do not mean to suggest that every statutory interpretation is equally valid/cognizable/reasonable.

    Agreed, except that I don't think that justice is blind, we can really only hope for justice to be farsighted. No ruling exists in a vacuum. There's only more impartial and less impartial.
    The real problem is when people judge a judicial opinion by the degree to which they approve of the ultimate outcome. The judicial branch is not just another legislative branch--and at least we get to elect our legislators.
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  12. #10
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by GoldPhoenix View Post
    My problem is that you want a nice, clean, clear-cut line that doesn't exist. This is sort of the same fallacy that libertarianism labors under; just because you can define something doesn't mean that the definition and the reality have a clear-cut, discernible 1-to-1 correspondence.
    I agree that when JA is being applied can be a gray area. But really JA is primarily a matter of intentional motivation (activism is generally intentional). If one is sincerely doing one's best to interpret the law as accurately as they can, they are not engaging in Judicial Activism even though they are interpreting. And if one is intentionally ruling based on what one thinks the law should be as opposed to following precedent, then they are engaging in JA, even if they muster some kind of legal rationale.

    And of course there can be all kinds of grey areas where one really couldn't say, not even to oneself.

    Quote Originally Posted by GoldPhoenix View Post
    We should be able to agree to agree that instituting a state religion is against the Constitution, but the further we go from the things that were written about 228 years ago, the murkier things get. Legal precedence is nice and all, but again I really doubt that you're actually going to remain consistent on this position.

    Dred Scott vs. Sandford is a legally absurd line of reasoning, too. However, it not only was ruled that way, it was upheld as the legal precedent and would have continued to remain the legal precedent --literally-- if it weren't for the 14th Amendment.

    And for that matter, the whole notion of selective incorporation --the precedent for Brown v. Board, Miranda v. Arizona, etc, were founded upon-- is not really based on anything literally written in the Constitution. But there is an interpretation of the Constitution which allows for it.

    Does that make it judicial activism or just a logical choice that could be made when interpreting the 14th Amendment? Is the original precedent always the natural and logical precedent to follow?

    If Christianity and the Bible (Or Islam and the Q'uran, or Judaism and the Talmud, etc) have taught us anything, it's that interpretations are like ***holes --everyone has one.
    But again, it comes down to motivation. If one does his best to accurately interpret, then he's not engaging in JA, even though it is an interpretation.

    And some of those cases you mentioned perhaps were JA and can accurately defined as such. Or maybe it's such a grey area (and it's even harder for others to determine a judge's state of mind and therefore say it was JA) that we can't tell and one guess is as good as another.

    ---------- Post added at 04:49 PM ---------- Previous post was at 04:09 PM ----------

    Quote Originally Posted by Sigfried View Post
    JA gets charged any time a judge does something that seems to go against popular opinion or established tradition. Basically if a Judge changes something people feel has already been established it is activism.

    Of course this is a pretty narrow view and not much in keeping with actual legal tradition or practice.

    Mind you that can be a sign of the real deal, which to my mind would be a Judge with a personal extra legal agenda and who intentionally end runs existing law to pursue that agenda. Generally judges like that don't rise too high, at least not if they are transparent about it.

    I think the grey ground here is that any judge can craft a theory of law and cite a body of law in a way that synchronizes their personal agenda with what they feel to be an honest reading of law. It is hard to know how honestly they come by such a view or even if honestly attained, if it none the less is a perversion of the ideal of "blind" justice.
    I generally agree with this. It's pretty much what I'm saying as well.
    Last edited by mican333; June 29th, 2014 at 03:55 PM.

  13. #11
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by CliveStaples View Post
    That's the whole question of jurisprudence and statutory interpretation. The people who answer that question rely on their legal experience and expertise.
    It's all well and nice to say that there are people who have legal expertise and experience, it's another to say that their legal experience and expertise leads them to the same conclusions. Law isn't like a mathematical proof. It's precisely that experience that leads people to come to their legal opinions.

    Quote Originally Posted by Clive
    Surely you do not mean to suggest that every statutory interpretation is equally valid/cognizable/reasonable.
    Do I personally think that? No, but on the flipside Antonin Scalia seems to have many overtly idiotic arguments for positions that he's almost transparently advocating for because he wanted X not to happen and it never mattered what the facts of the case were. But to the point, his arguments seem to be quite popular; almost exclusively amongst the people who already agree with his worldview. I can't imagine what the connection could be.

    Quote Originally Posted by Clive
    The real problem is when people judge a judicial opinion by the degree to which they approve of the ultimate outcome. The judicial branch is not just another legislative branch--and at least we get to elect our legislators.
    If the only thing that they care about is the end results, sure. But again, my point here is that the law is not mathematics. There is not a single correct ruling; there are many interpretations of the law which lead to many different acceptable rulings contingent upon the interpretation of the law. And what people want to happen and how people interpret the law are not separate, non-intertwined entities. If you're a liberal Justice, 99.99% of all cases, you're going to interpret homosexuals to be a special class. If you're a conservative justice, in 99.99% of all cases, you're going to interpret them not to be.

    Now to be fair, most of the time court rule on very routine things, and there these biases, worldviews, etc, don't (and shouldn't) really enter into it. But when precedents need to be set, you'd be delusional to think that the justices own worldviews aren't going to factor into the equation. I'm not saying that they won't hear the case and listen to the arguments being made, but I am saying that they aren't in a vacuum and that their worldview will strongly frame how they choose to make precedent.
    "Those who can make you believe absurdities, can make you commit atrocities." --Voltaire

  14. #12
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    Re: Judicial Activism - Gay Marriage and the Most Conservative State in the Union

    Quote Originally Posted by GoldPhoenix View Post
    It's all well and nice to say that there are people who have legal expertise and experience, it's another to say that their legal experience and expertise leads them to the same conclusions. Law isn't like a mathematical proof. It's precisely that experience that leads people to come to their legal opinions.
    It doesn't have to lead them to the same conclusions. It's just relevant experience and expertise. When you're familiar with legal documents, legal philosophy, jurisprudential history, etc., you're in a much better position to make judgments about the meaning of a statute than someone who has no such familiarity.

    That's not to say that experts will always agree on everything. The more difficult the question--the less obvious the answer--the more experts will diverge.

    Do I personally think that? No, but on the flipside Antonin Scalia seems to have many overtly idiotic arguments for positions that he's almost transparently advocating for because he wanted X not to happen and it never mattered what the facts of the case were. But to the point, his arguments seem to be quite popular; almost exclusively amongst the people who already agree with his worldview. I can't imagine what the connection could be.
    (1) I doubt that any Supreme Court argument, whether in the majority opinion or the dissenting, is overtly idiotic. I think you need to substantiate your claim. Anecdotally, the most liberal lawyers I know (who are quite liberal) think Scalia is brilliant and makes well-reasoned and well-articulated arguments that happen to be wrong. I'm sure that you can find legal experts who disagree and think Scalia's arguments are atrocious, and I'm just as sure you could find legal experts who disagree with that and think Scalia's arguments are the pinnacle of legal reasoning. If you're going to allege that Scalia's arguments are overtly idiotic on their merits, then I think you'll need to present your case.

    (2) Idiots and opportunists (and politicians, who not infrequently fall into both categories) will make hay out of anything that they think even remotely supports their view. For examples on the topic of judicial activism, see e.g. "law and order" conservatives opposing opinions upholding defendants' constitutional rights (and "civil rights" liberals opposing the right of a defendant to confront his accusers). None of this is material to the question of whether every statutory interpretation is equally valid/cognizable/reasonable.

    If the only thing that they care about is the end results, sure. But again, my point here is that the law is not mathematics. There is not a single correct ruling; there are many interpretations of the law which lead to many different acceptable rulings contingent upon the interpretation of the law. And what people want to happen and how people interpret the law are not separate, non-intertwined entities. If you're a liberal Justice, 99.99% of all cases, you're going to interpret homosexuals to be a special class. If you're a conservative justice, in 99.99% of all cases, you're going to interpret them not to be.
    I'm sorry, this seems like gobbledegook that amounts to "People will just vote their politics". Do you have an argument that both of these conclusions have equally strong jurisprudential support?

    Now to be fair, most of the time court rule on very routine things, and there these biases, worldviews, etc, don't (and shouldn't) really enter into it. But when precedents need to be set, you'd be delusional to think that the justices own worldviews aren't going to factor into the equation. I'm not saying that they won't hear the case and listen to the arguments being made, but I am saying that they aren't in a vacuum and that their worldview will strongly frame how they choose to make precedent.
    This is true in an empirical sense--every decision is subjective, everybody is subject to bias.

    However, the question at hand is rather different than that. The issue is whether judges should to the extent that they are able attempt to minimize the effect of bias.

    For example, suppose a judge is asked whether gay marriage should be legal. Ideally, the judge's decision should be based on what the judge considers the law to say on the matter.

    Your statement here, however, suggests that even if the judge is convinced that the law either counts against the legality of gay marriage or is silent on the matter, so long as the judge thinks his decision will carry precedential weight he should decide based on whether he thinks gay marriage should be legal (and not merely on whether he thinks gay marriage is legal / constitutionally mandated / constitutionally permitted).

    That seems plainly contrary to the rule of law, and to the concept of checks and balances (since by and large judges are not elected, and certainly Supreme Court justices are not).
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