judicial tyranny

[Justin Schwartz]

OK, take the medical marijuana decision. I think that a court's job in 
statutory interpretation is to track the intent of the legislature. Do you 
think Congress intended there to be an unexpressed, implicit exception to 
the prohibitions in 21 USC about controlled substances, in the case of 
marijuana, where there are express exceptions in the cases of morphine or 
methadone, for example? Not a fucking chance. This isn't political. The 9C 
wasn't dumb; it was a respectable opinion. But it was wrong. This isn't 
politics. It's law. --jks


>
>wojtek wrote:
>
> > It is only at the
> > strategic junctions when they are unfair because they succumb to 
>political
> > expediency.  Therefore, you need to show me that at such strategic
> > junctions, the US system was above political expediency - and that I am
> > afraid would rather difficult to do.
>
>In fact, impossible. This is precisely correct.
>
>I knew well many of the lawyers (and the handful who are still alive I
>know to this day) who had to deal with the Federal Courts during the
>1948-1954 McCarthy period, when the First Amendment was thrown out the
>window by the Federal judiciary one and all. As Victor Rabinowitz, who
>knows more about this than anyone, said - as far as resisting the
>nationwide political repression of the McCarthy period was concerned,
>the Federal judiciary were useless.
>
>They know when they have to toe the line, and they do so. A good friend
>of mine tells the story of his first day clerking for the late Judge
>Vance (murdered because he was a good judge) & being given a drug
>importation case with the comment from his judge that "here we have what
>we call the 11th Circuit exception to the Fourth Amendment."
>
>As the crits explained long ago, most all cases in the appellate courts
>and all cases in the Supremes are overdetermined. Multiple decisions for
>either side can be crafted in accordance with Justin's "internally
>consistent principles--the meaning of statutes and the constitutional
>language,[and]respect for precedent."
>
>Thus when Justin says in reference to medical marijuana "[f]or what it
>is worth, I think the SCt's opinion is probably right in tracking
>Congress' intentions, although the 9C opinion that was overturned was a
>tolerable reading of the text" he is acknowledging that both opinions
>are OK by his "internally consistent principles" but refusing the clear
>conclusion - that the decision (including *his* decision as to what is
>"probably right") is therefore political.
>
>john mage

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