I recently attended the Federalist Society's Annual Lawyer's Convention in Washington DC. Although I have been a member for a few years this is the first time I have made it to the convention, and it was well worth the time and expense to be there. For the first time in my legal career, (law school included....) I felt as though I was in the midst of people who looked at the law the same way I did, PARTICULARLY, the Supreme Court.
A recent Time magazine article profiled the "Roberts Court" and how it differs from previous courts. The article also analyzed Chief Justice Roberts' philosophy of how the court should be used, which is to say, that the court does not look at the case before them, determine how it should turn out, but rather, what does the Constitution say, what are the facts of this case, and issues a decision based on that, and little, if nothing else. Especially, can I say, FOREIGN LAW?
I am often asked by people what "legislating from the bench" means. Conservatives who pay attention to this phenomena often refer to it in those terms, but it is not always clear what it means. It means, what I described above...looking at how you think a case should turn out and issuing a decision that supports your decision, however loosely. Conservative principles, however, support the separation of powers as laid out by our founding documents and those that fought and died to support that foundation during the years of our Revolution against the crown. It is this separation that dictates to us who makes the laws, who enforces, who upholds, and who determines the Constitutionality of the laws.
Legislatures make laws. The Supreme Court determines the Constitutionality of those laws. The Supreme Court should not make new laws based on the simple fact that a desired outcome is wanted and there is no current law that supports it. Often in state Supreme Courts you see decisions where the court will state in its decision something to the effect of, 'the outcome may seem unfair in this case, but it is the legislature's job to sort that out'...This is a clear hint from the court that it is up to the state lawmakers to look at this case and determine whether a new statute is needed, or for voters in states like ours that embrace the initiative process to take up the cause, get the issue on the ballot, and effect a change of law in that way.
The Roberts court so far, in my opinion, is headed in the right direction, and if you would like more information I do recommend the Time magazine article to you for further reading.
Final thoughts on the convention: Justice Thomas was funny, articulate, and proved to me again what a fabulous choice for the court this man turned out to be. I recently bought his book and when I'm done with textbooks and Vince Flynn novels I will be reading Justice Thomas's book first in my stack of "unreads." President Bush, Justice Alito and Justice Scalia spoke at the black tie dinner and all faced thunderous applause..it was the Society's 25th anniversary and all had kind words for what began as four law students who saw a dearth of conservative views on their law school campus, and started a small revolution.
Two huge speakers during the conference itself were Rudy Giuliani, appearing to perhaps convince this growing group of lawyers that he would appoint strict constructionist judges if elected President. He did a good job I thought, and you can see a small bit of video below, although the clip deals mostly with the great nature of Americans. Lastly, Chief Justice Roberts gave a lecture that turned out to be historical in nature, about our "mascot" at the Society, James Madison, and Madison's attempts to appoint Supreme Court Justices in his day. The Chief Justice was engaging, humorous, educational, and inspirational. A second room had to be opened for those with tickets to see him and it was akin to attending a royal wedding where you're sitting a quarter mile away but at least you're in the "same room!"
We are a lucky people to have this man in the position he is in. Those that feared his appointment, followed by Alito's, do not face wholesale reversals of previous decisions that will take us back to the "dark ages..." If anything of major consequence is reversed in the years to come under the Roberts court, the issues will be sent back to the states to decide, by their own people, which is the point behind state sovereignity and a limited federal government.
All hail the chief...