A Quote by Amul Thapar
It is not the responsibility of the judiciary to amend poor legislative drafting, even if judges would personally prefer a different outcome than what is required by a statute's text.
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Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That's the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches.
In our system of government, the judicial and legislative branches have different roles. Judges are not politicians. Judges must decide cases, not champion causes. Judges must settle legal disputes, not pursue agendas. Judges must interpret and apply the law, not make the law.
Selecting about 100 judges of the higher judiciary every year in a rational and fair manner is an onerous task requiring a full-time and not an ex-officio body. An ex-officio body of sitting judges and ministers cannot devote the kind of time required for this job.
How we decide the vexed issue of the method of selection of judges of the Supreme Court and the high courts would determine the future of our democracy and the rule of law in the country. We are faced with the twin problem of selecting the best judges and also ensuring that the judiciary would be insulated from executive interference.
The constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of Representatives. It has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate, and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.
I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the Constitution. But it seems to me there comes a point where a judge is using his own creativity and purpose and crosses the line between interpreting a text written by somebody else and in a sense creating something new.
The judiciary wields enormous power but is utterly mysterious to most Americans. People know more about 'American Idol' judges than Supreme Court judges. Done right, social media is a high-octane tool to boost civic awareness.
The appointment of judges to the higher judiciary cannot be the sole domain of a few members of the higher judiciary. This turf must be shared.
The Supreme Court's non-transparent attitude on the disclosure of assets is in line with the judiciary's steadfast refusal to allow any transparency in the matter of appointment of judges, or for that matter, in the judiciary as a whole.
I have to say that the judges and our judiciary system makes better decisions than the politicians.
While the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches.
Last year, I was proud to be an original co-sponsor of legislation that would increase federal judges' salaries by more than 40 percent. It also built in a cost of living adjustment, so the Judicial Branch would not be dependent on the Legislative Branch for increases each year.
As a general rule, I do not think it appropriate for judges to heap either praise or censure upon a legislative measure that comes before them, lest it be thought that their validation, invalidation, or interpretation of it is driven by their desire to expand or constrict what they personally approve or disapprove as a matter of policy.
The Tax Court is independent, and its neutrality is not clouded by prosecuting duties. Its procedures assure fair hearings. Its deliberations are evidenced by careful opinions. All guides to judgment available to judges are habitually consulted and respected. It has established a tradition of freedom from bias and pressures. It deals with a subject that is highly specialized and so complex as to be the despair of judges. It is relatively better staffed for its task than is the judiciary.
Nothing is more deflating to morale than to have a poor outcome pinned on someone who doesn't deserve it. It lacks integrity and overvalues the outcome at the expense of the people as well as the process.
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