Judge Intervention and the Supreme Court

Another link from Alderete, this time about the nature of judging. Summation quote:

Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts’ famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won’t help you in any but the handful of very easy cases, which, as Souter correctly observed, “do not usually come to court, or at least the Supreme Court.” That is precisely why, he added, “the fair-reading model has only a tenuous connection to reality.” It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.

You can read the rest of the article here.

4 thoughts on “Judge Intervention and the Supreme Court

  1. antonucci

    Unlike the Supreme Court, 99% of high school debate rounds are easy calls, according to fairly basic judging stare decisis (or the more Napoleanic system of your own judge sheet.)

    Interventionism comes into play only at the margins – the cases that would be appealed if debate had an appeals system. Of course, if debate had an appeals system, it would be terrible.

  2. Josh Brown

    Isn't there another important dis-analogy – namely, that debate is a competitive activity basically engaged in for fun and some education, while the supreme court makes decisions which affect people's lives in a much more direct way? Non-intervention is more likely to seem like an important goal in debate than in supreme court arguments. I mean, imagine if a supreme court justice wrote something like "well yes, it's true that the fifth amendment has been interpreted to do blah blah blah, but the defense attorney didn't point that out so I'm not going to make the argument for him/her"? I think we would probably want a justice "intervening" in this sense – we'd like them to do their homework on a particular case and on precedent, not *just* consider the arguments advanced by the litigants.

    OF course that's not the kind of intervention the above quote is talking about, but I still thought it was worth pointing out.

  3. Intervention

    –Josh Brown

    Well isn't it true that if an issue is not raised on appeal the judge can't just make the argument for the lawyer no matter how important. While intervention may be desireable(sp?) in certain cases, that doesn't mean that it should be legally permissible overall. The decision has to reflect the record of the case. In criminal cases, for example, the appeal can't allege that facts not considered in the first instance exonerate (or convict) the criminal. I believe, in the case of exoneration, the prisoner would need to file a habeus proceeding, which is entirely different from an appeal. This all reflects my basic knowledge of the legal system so feel free to correct me.

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