Redstate

PBA Ban case (see here) - U.S. District Court Judge Denise Page Hood: appointed by William J Clinton...

"Heaven forbid we have 'Under God' in the Pledge" case (see here) - Senior U.S. District Court Judge Lawrence K. Karlton: appointed by James Earl Carter...

This case - U.S. District Court Judge Loretta Preska: appointed by George H.W. Bush (Bush 41, for the slow-witted).

Nope, no trend here.

Against the environment

Not believing in global warming

Supporter of giant corporations

Against State's rights (several states were plaintiffs)

Maybe Bush should nominate her for the Supreme Court?

We'd welcome a judge who knows when to stick to the law and when to stay the heck out of politics. Nine of those and we'd be good to go.

morons.

as correct.  At this stage, this is a political issue and one that needs addressed legislatively.  A good call.

Loretta Preska eh, could we perhaps cajole Ms. Preska to run for President.  However she will meet with heated opposition from those concerned and soon to be poisoned citizens who can't wait to be stuffed in Coney Island electric bumper cars by their omniscient superiors. In the meantime they will continue to drive their SUV's with nary a twinge of conscience.  The ten minute questions that Leahy,Biden,and Rumdum Kennedy would put to her, should she appear again before the Senate, would be interesting indeed.  For what it's worth about a year ago Al Gore got a speeding ticket while driving a four door Lincoln Continental.  What's good for the goose etc etc.

a judge, by doing an absolutely 'common sense' thing does something utterly shocking.  Speaks to how far our judiciary has descended into imperialism that when a fuling comes down showing some judicial humility, our teeth fall out.  

This ruling, in terms of running cross-grained from expectations, would be like if Tom Brokaw, Keith Olbermann, or Terry Moron [sic] started off a broadcast with this:

Today, Bill Clinton, only the second President in U.S. History to be impeached, attacked President George W Bush for [insert latest media-driven red herring here] claiming that Bush was insensitive to [insert your favorite race, gender, or sexual orientation here] by lowering the taxes of every American rather than cowtowing to the yelping special interest groups who view the federal budget as their lunch buffet.

sense rulings taking place in courts across America every day or at least every week.

This ruling, in terms of running cross-grained from expectations,

Whose expectations?  Only folks who like to judge-bash at every opportunity.  It's hard to believe that a wide majority of Americans would find this ruling shocking or unexpected if they were aware of it at all.

I think this ruling would be a lot more shocking to most people than the 9th Circus' ruling on The Pledge.

that there are dozens of common sense rulings issued by judges every day.  You are also right that a wide majority of Americans would not find this ruling shocking (thankfully).

The sad fact, however, is that there are also many Americans (including many in the MSM) who would not have found it shocking if the judge had ruled the other way.

why you support the Democrats? They do not appoint judges who take the stance which this one has. As you may know, she was nominated by Bush Sr.

I know large numbers of Democrats who hate much of what Democratic appointed judges do, but who never make the connection to the party which put them on the bench.

What?!! A judge who decided a case on the law and who is unwilling to wander into territory in which the judiciary doesn't belong?!?

You would have to say the same for Kelo.

It would be more correct to call global warming an hypothesis. It does not rise to the level of a theory, like relativity or evolution. Giving it the theoretical title exaggerates the level of support scientists give it.

I believe the premise of your article is correct, but your link regarding "Global Warming" is very iffy.  I read it, and would like to address a few points.

Claim: "Climate models show the planet has cooled in the last 2-3 years."

True, but: Globe temperatures fluctuate, and the last decade is the warmest in recorded history.  In addition, new research (http://en.wikipedia.org/wiki/Satellite_temperature_measurements) shows that temperatures actually increase.  The data set the site you quote used is from '79-'99.

Claim (under myth #2): Warmer winters save lives, Ice caps are thinning some places and thickening in others.  The gist is that perhaps global warming might not be so bad.

True, but: No one knows how bad it will be.  MANY scientists also think sea levels will rise so much it will destroy every major US coastal city.  Mild winters don't sound so good anymore.  I'm not saying it's going to happen, just that the article you quoted is ridiculous spin.

Claim: "18,000 signatures from scientists worldwide on a petition called The Oregon Petition which says that there is no evidence for man-made global warming theory nor for any impact from mankind's activities on climate."

Correction:  This is a complete lie. Here is a link to the text of the Oregon Petition. Read it yourself, it's very brief: http://en.wikipedia.org/wiki/Oregon_Petition.  It asked you to sign if you agree there  is no proof that the results of global warming will be catastophic.  That is correct.  The claim on the web site quoted is a lie.  

I know you probably didn't realize the information was so bad there, and I only chose a few pieces to pick on, but there is much more to go off as well.  The jury is out on how much people contribute to GB, and what the outcome will be, but we do know higher CO2=Higher Temps and we do create CO2.  Once again, I agree with the premise of your article as to the Judges decision, as well as what I think your position would be on the Kyoto protocol... but please leave the spin/distortions/lies out the debate, as it cheapens this site.

Thank you.

Cliff

The judiciary certainly belongs in the process of interpreting the Takings Clause. I believe the judiciary overstepped its bounds - but not in granting cert.

Rather the decision was overly broad and opens the door for private entities to lay claim to the property of others. As long as there is a "carefully considered development plan," the taking can be justified. Seems like too much "taking" in my opinion.

Seeing as just about everything now a days has an online futures market, maybe there would be something workable in the risky field of global warming.  Now I know this would be a long term investment, but I'd be willing to plunk a few thousand down saying global warming is for real.  God knows that GM, BP, and many other companies are starting to do the same.  

Global warming (if true) will be a huge industrial windfall for some companies, and they are beginning to prepare.  You can discount scientests, since in a way you are right.  It isn't a theory yet.  It isn't proven yet.  But it is certainly the best explanation we have of what happens when you shoot billions of tons of CO2 into the air.  

Thanks,

Cliff

Although you're right it does not have the overwhelming amount of supporting evidence that the theory of evolution has.  

That global warming is primarily caused by anthropogenic sources of carbon might be a hypothesis.

I think the diarist intended for the second, italicized "theory" to be read in a sneering fashion, using the colloquial rather than the scientific definition of theory.

did the judiciary "overstep" is bounds in Kelo?  

The decision was INTENTIONALLY broad.  The majority opinion plainly said that they expected further cases that would further clarify the matter.

judges from both sides of the aisle make reasonable and informed decisions on a daily basis.  The only decisions that make the news are those that incite one side of the electorate or the other.  

With respect to being a Democrat, I'm not a single issue voter.  Sadly, there is no national party which is a comfortable home for me these days.  I'm sort of a Scoop Jackson Democrat or Rockefeller Republican.  I'm fiscally conservative but I put controlling unneeded spending ahead of tax cut passions.  I'm socially moderate to liberal -- perhaps even more libertarian.  I believe that government has a limited role in the restraint of personal liberties.

I could easily vote for a Guiliani or a Clinton but I find this administration largely unprincipled and it has probably caused me to exaggerate my ties to Democrats when I'm more naturally independent.

While I've always been a strong national security voter, I think that our dramatic overreactions to terrorism has had the potential to do more lasting damage to the U.S. than the acts of the terrorists themselves.  I blame both national parties for this.

You have almost nailed my political persuasions to a T as well.

I didn't vote in 2000 because I honestly saw no difference between the two candidates(voted Bush I in 88 and 92 and Clinton in 96).  They were both utterly lackluster to me.

I've always been a Country over Party person and I really don't care which side of the aisle a person is.  

We will do well to have more of these decisions from the Supreme Court when Roberts is confirmed.  But the net effect will be slow until enough judges have the guts to make these statements over time.

Prior to this ruling, Judge Preska had won respect among some of us in 2002, when she overturned the effects of a 1997 denial of appeal in her own hand, finding for the church to which I belong.

In our resubmission of The Bronx Household of Faith v. New York Board of Education, she cited several aspects of an intervening SCOTUS ruling (2001, written by Thomas) as sufficient grounds to grant us a temporary injunction to make use of a public school, during non-school hours, as a meeting place for our service.

We are currently awaiting her ruling on a joint request for summary judgment; her demeanor during the hearing strongly suggested that she thought the city's arguments strained in light of the SCOTUS clarification.

nature of the decision was intentional, does not assuage any concerns. The Court is stretching the clause too thin and undoing an important limit on government.

Justice O'Connor: "Today the Court abandons [a] long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—--in the process."

While there is clearly a debate on the merits of Kelo, that Kelo is a case where the judiciary should play a role, i.e. in interpreting the Takings Clause, was a more pertinent point to this thread anyway.

You can say you disagree with this administration if you like, but that hardly equates to its being unprincipled.

The judges who attempt to make policy decisions from the bench are usually Democratic appointees, and always liberal. It is one of the core differences in principles between the two parties.

Does the 5th Amendment even apply to States, unless you take a broad definition of the 14th?  IOW, did the framers intend to limit local governments powers in this regard?

You're probably right -- thanks.

Republican-appointed judges also try to make policy decisions from the bench. If I'm correct, the whole debate about overturning Roe describes this. Some conservative judges want to change law by overturning Roe. I say both sides make policy from the bench, which can be both good and bad. Without such "bench policies", would we have civil rights today? Just my two cents.

Republican appointed judges, at least those that are strict constructionists, just want to revert to the constitutional order where the court is not involved in making policy decisions out of whole cloth.

Roe and Casey are not laws, they are court decisions that overstep the bounds of the Court's role in our governmental structure.

If Roe and Casey were overturned, it doesn't automatically make abortion illegal.  States would then have to use the democratic process to pass their own laws that address the abortion question.  some states would have very restrictive laws, others would have much more loose laws.  Strict constructionist judges in the mold of Scalia and Thomas would not try to overrule state laws that they might not agree with personally, because then they move from strict constructionism to judicial activism.

I'll just say that by "unprincipled" I didn't particulary mean venal but rather I can't ascertain what particular principles anchor their decisions and actions.  

Some sort of empirical evidence to back up this claim?

thanks for clearing that up for me.  I now see your point. Just one question, you mention the courts "overstepping" their judicial boundaries. I'm not sure if I should ask this (for fear of being labeled a troll), but do you think the SCOTUS overstepped when they decided in favor of Bush in 2000? I know this doesn't relate directly to legislating from the bench. However, couldn't one argue that SCOTUS overstepped in 2000, facilitating Bush's entry into the White House?  I know that Bush would have one Florida anyway, but my question lies within the role of the SCOTUS. I always thought Congress would have stepped in if such a problem rose up.

"Some conservative judges want to change law by overturning Roe. "

If some legislative body had written Roe, then you would have a point. Since that was not the case, you don't.

If and when conservative judges start striking down laws passed by the people or by the peoples elected representatives, by conjuring up new "laws" from the Constitution, then I will condem them also. But I think by definition they would no longer be conservative judges. It's the process, not the result, that makes the difference.

Regarding civil rights - you are essentially claiming that the judges are wise and virtuous, and that the people are not. Again, that is one of the cases where conservatives and liberals differ on principles.

 .. or on yours? You may not like the policies of the Bush administration. I don't like all of them myself. But it seems pretty clear where they are coming from and where they are going. Bush's foreign policy speechs (which don't get the attention they deserve) are crystal clear. And he does his best to deliver on them.

Like I say, I can see people disagreeing. I can't understand people who profess confusion and complain that things have not been laid out clearly.

There's a very long answer to this that has been discussed multiple times here, there, everywhere.  Lest we be accused of thread jacking, the point boils down to the Court's first ruling in the case.  The Court ruled 7-2 that the Florida Supreme Court's decision was unconstitutional and violated the Equal Protection clause.

The 5-4 decision ruled that a re-count could not be done in time for the statutorily mandated deadline for completing the counting of the vote.  Essentially, the controversy behind this is that there was not consensus as to what a fair recount would have looked like that was uniform.  Some felt that the Florida Supreme Court could have set a standard to adhere to, others felt that this was the role of the legislature and there was insufficient time to have a legislative fix.  So the count was ordered to stop, and Gore conceded.

There's lots of other analyses available, with more or less spin than I have probably included here (I'm not unbiased, I'm glad Gore didn't win), and I'm not a constitutional law expert.

But we need to stop this conversation lest we be severly admonished by those who graciously provide us a sandbox in which to play.

He starts his administration by saying he is against nation building.  He invades Iraq as a punitive action.  He now is advocating nation building.

He claims to be a free market person but, almost immediately upon taking office, imposes tariffs on steel imports.

He claims to be a fiscal conservative but, well plenty of evidence to the contrary on this.

I believe that the President is principled man.  But this administration has moved the goal post several times during their stint on Pennsylvania Ave.

Note: I'm not looking to criticize the President's actions in Iraq.  They are what they are.  But to some of us their policy there seems to be, as jmaier said, unprincipled or maybe aprincipled is a better word.

Let us stop here and keep this diary on track.

As I recall, it was filed under a tort claim of a public nuisance, which is always risky in environmental law as you usually need to base environmental suits on a demonstration of actual harm or a statutory basis.  So to paint this as some amazing and suprising decision is ridiculous.

As for the entire theory that liberal judges are "activist" while conservative judges are not is equally ridiculous.  The best definition of an activist judge I have seen is an activist judge is one who makes decisions you don't like.

Strict constructionists or originalists or whatever you want to call them are every bit as activist as the most liberal judge who wants to provide government funded abortions to everyone.  The Constitution was not delivered by God on stone tablets.  It was written by men who had differing agendas and even the authors didn't agree on what it meant.  Heck, they so badly botched the process and left it so incomplete that four score and seven years after it was written one of the bloodiest wars fought in history up to that point was fought over issues left unresolved by the document.  

To say that judges can somehow divine what the original intent of the document was or how the founders would apply that mythical original intent to situations that were beyond the comprehension of a group of gentlemen farmers is silly beyond belief and an excuse to roll back the undeniable advances in individual rights the vast majority of American citizens have achieved over the last one hundred years.

Whose expectations?  Only folks who like to judge-bash at every opportunity.

That's a pretty fatuous charge, pal.  I only bash our judiciary because in my 40-year lifetime they have turned from a co-equal branch of the government into a smug little imperialist mullacracy that is busily neutering the other branches and inserting leftist theology into the Constitution.  And it's not like I have to work at finding things to criticize.

It's hard to believe that a wide majority of Americans would find this ruling shocking or unexpected if they were aware of it at all.  

Maybe for you it's hard.  I submit these thoughts:

(1) You did know, I hope, that GWB won the 2004 election with a main plank being to restore the judiciary to a mode of interpreting vs writing law.  That's hardly a secret that discussed only on GOP blogs.  

(2) Do you have any idea why something like 13 states passed constitutional amendments in 2004, by margins typically 65-75%, to define marriage as between 1 man and 1 woman?

The reason that #1 was a winning position, and #2 happened, is because 'a wide majority of Americans', to quote you, have had it up to their arses with rule judicial fiat, and are voting to change that.  And yes, I think they would find the ruling we spoke of 'surprising or shocking'.

Why would anyone consider you a judge-basher when you write such dispassionate comments as this...

That's a pretty fatuous charge, pal.  I only bash our judiciary because in my 40-year lifetime they have turned from a co-equal branch of the government into a smug little imperialist mullacracy that is busily neutering the other branches and inserting leftist theology into the Constitution.  And it's not like I have to work at finding things to criticize.

It's like you were trying to fit as many pejoratives as you possibly could in one paragraph.

Can you give me a list of 5 court rulings of the past 20 years that have significantly altered our way of life?  I'm not talking about rulings that could, someday, change our way of life.  Rulings that had a clear and negative impact on our way of life.  

Who is going to define what constitutes a sigificant alteration in out way of life? You?

I'll offer this one example. Others can add their own.

You are a troll. Beats me why they let you play here.

If you are under the impression that Bush campaigned as some small government conservative, you are ignorant. If you know better, then you are just trying to jerk my chain. I don't much care which is the case. Go away.

please explain what "leftist theology" has been inserted into the constitution.  By the way the gay marriage issue was a State Supreme Court making a decision based on the Massachussetts, not U.S. Constitution, a point that always seems to be missed in the whole debate about gay marriage and activist judges.  Oh yeah, and all those evil judges in Florida who killed Terri Schiavo--every single one of them was an elected state judge.  

The simple fact is that most of the activist decisisions you hate so much happened twenty plus years ago.  The federal courts, and especially the Supreme Court, have become decidely more conservative over the last twenty years.  Individual, environmental and labor rights are under assault while corporate, law enforcement, executive power, and for lack of a better term "traditional values" (with the exception of the very limited area of consensual sexual acts between adults), haven't had it so good in fifty years.

It's starting to feel like the Senate in here.

You ask a question and when given an answer you start throwing out troll accusations.  

If you know you won't like the answer to questions then the best idea is to not ask them.

It's like you were trying to fit as many pejoratives as you possibly could in one paragraph  Actually, yes, I was having fun with the thesaurus.  But I invite you to debunk any of that if you want.  I can certainly defend it.

As for the 5 rulings -- flyerhawk, you put quite a few restrictions on it -- has to be within 20 years, and each decision has to individually 'significantly alter' our way of life, and 'clear and negative impact'.  My reply:  it's really the cumulative effect that has served to significantly diminish our way of life.  

The biggest negative impact of all is this:  by ruling by judicial fiat as they do now, it is no longer possible (or has been made prohibitively difficult) for the people to democratically rule themselves.  Flyerhawk, that is a huge, huge deal.

Think of it this way.  A man is put in prison, and let's say it's pretty much a gravy prison -- minimum-security, air-conditioning, good plumbing, single-occupancy cell, with weightrooms, cable TV, maybe a putt-putt course, library, game rooms, on-line correspondence courses, and so on.  What physical harm have you done to him?  Not really much.  The true harm done is that he is not free.  He is unable to go where he pleases and do what he pleases.  His desires and goals are unattainable.

What the judiciary has done to Americans is exactly like that.  Whether or not you agree with Roe, or Simmons, or Kelo, or for that matter Casey, Miranda, or any number of such decisions, those all denied the ability of Americans to self-govern, and that, my friend, has significantly diminished our way of life in a clear and nagative way.

flyerhawk was not trolling here.  In fact, a cursory review of the site will reveal that he has encapsulated in his single comment several things (tariffs, spending, nation building, etc.) that have been critically reviewed by many here - including directors and editors.

You may not like the way he said it, but trolling it was not.

My apologies to Nick for borrowing his Zebra-suit reference.

You may not like Roe or Simmons or Kelo or Casey or Miranda or Raich or Lawrence or any number of other cases.  But that doesn't mean they are examples of a judiciary run amok.  That simply means they are examples of a judiciary ruling in a way you don't like.  

Kelo is a perfect example of this.  If Kelo does ANYTHING it allows people to self-govern by giving local government the ability to ascertain, as much as possible, what is best for the people in that area.  Had Kelo gone the other it would have taken that power out of the hands of the local officials.  So even in cases where a municipality overwhelmingly  supports a certain measure a single person could thwart the will of the people by appealing to a FEDERAL ruling.

Cliff,

You said: "The jury is out on how much people contribute to GB, and what the outcome will be, but we do know higher CO2=Higher Temps and we do create CO2."

That is not correct at all. We have no proof that higher Carbon Dioxide levels cause higher temperatures. We do have plenty of Ice Core data showing a correlation, but correlation is not causation. To attribute proof of causation to such a correlation is the fallacy: Post hoc, ergo propter hoc (After which, therefore because of). There are a variety of other ways to explain higher levels of carbon dioxide in the ice when temperature was lower (solubility of carbon dioxide is significantly higher in water when colder, for instance, and increased atmospheric carbon dioxide would favor increase ).

This is not to say that I deny that we may be causing some amount of warming by burning non-renewable fuels (unlike bio-diesel, ethanol and other living plant-derived fuels). My research was in that area for a couple of years and I'm convinced, from both an environmental and econimic stanpoint we need to move away from these non-renewable fuels. However we can't prove anything beyond the correlation I mentioned above. It is too simplistic to say that increased carbon dioxide means global warming. We have no precedent for that.

Storm survivor, I'm burning up too much work time today messing around on RedState.  Can I get back to you tonight/tomorrow on this?  Cuz I would like to respond to that.

that you gave two patently incorrect answers.

1. Bush's objection to nation building, which we are not doing in Iraq as there is an insurgency ongoing, was specifically to operations like Haiti. Where the military is used to provide exclusively humanitarian relief functions over an extended period of time. Read the debate transcript.
   
2. Bush did not campaign as a small government conservative. The critique of him among small government conservatives in 2000 was that his "compassionate conservatism" was cover for big government.

I think point number two has been reasonably well documented of late.

I suspect that you and I may look at the same event and see completely different things.  As I said I wasn't looking for a debate on these topics.  I don't think that is appropriate here, particularly the Iraq stuff.  I was merely responding to why some people, who may not have been historically strong Democrats, may have shifted to the Democrats and why they may view this administration as not having clear principles.  YMMV.

I have to say, however, that most Republicans I know looked at him as being an advocate of smaller government.  Wasn't that the point of compassionate conservatism?  Move Federal charity work to religous organizations?

No, no, no.  My motivations are apparently a mystery to you.  Certainly politically I have viewpoints not favored by those rulings.  But my objections to them are on the grounds of 'rule of law'.  

Your perversion of Kelo is astounding.  The specific purpose of the Bill of Rights was to protect INDIVIDUAL PEOPLE from GOVERNMENT.  The takings clause is rather specific, and the Kelo case flies directly in the face of it, and can only be justified by incredible linguistic acrobatics.  It's not wrong because I don't like it, it's wrong because the plain langauge of the Constitution says it's wrong.  Whatever social logic you apply to it is irrelevant.

Curious:  when a single federal (not Supreme Court) judge strikes down the PBA ban passed by  overwhelming congressional majority and a Presidential approval, then tell me who is in charge?  Whose will is being thwarted?  They are being thwarted by 'penumbras and emanations', invented by a handful of judges.

but the GOPers I was around during 2000 were terrified that he was a chip off the old block. I don't recall anyone thinking he was anything like a movement conservative. His speeches on education and most other domestic programs scared Reagan Republicans silly.

Incorporation can be a complex issue when discussing the Court considering the selectivity of the progress of the doctrine. But you're right to consider the question. The states that demanded a bill of rights before signing on to the Constitution were committed to limiting the power of the new and, presumably, improved federal government in order to retain autonomy as a state. Upon ratification, the 5th amendment did not apply to the states.

Like the commentary about the global warming case, I think a debate about what topics and cases are appropriate for the Supreme Court to address is an important one.

The Bill of Rights were originally written to protect people from the FEDERAL government.  Without the 14th Amendment Kelo never happens and without a specific reading of the 14th Amendment Kelo never happens.  

Public use has been continually broaden for 120 years.  You wish to apply a "plan language" reading of the Constitution to a time in which the plain language of the law DIDN'T apply to the states.   This is nothing more than selective reading of our Constitution.  

As for PBA, why does it seem that talk of a judiciary run amok ALWAYS goes back to abortion?

But I think that Congress is far too cowardly.  Congress likes to dump the messy issues on the Courts lap, since they don't have to worry about re-election.

Although they are not all strictly within the last 20 years, it depends on how you define "significantly" and I wasn't necessarily looking at "negative" impact, but impact itself.

1982, in Plyler v. Doe - Struck down a Texas statute which withheld state funds from local school districts for the education of children who were not "legally admitted" into the United States, and which authorized local school districts to deny enrollment to such children,saying it violated the Equal Protection Clause of the Fourteenth Amendment.

1992, Planned Parenthood v. Casey - A revisit of abortion, Roe v. Wade... mixed results.

1994, U.S. Term Limits, Inc. v. Thornton - struck down state-imposed term limits on Members of the U.S. Congress.

2001, Alexander v. Sandoval - reversed an Alabama decision which forced the state to accommodate non-English speakers on driver's license exams.

I question whether plaintiffs could have proved, even by a mere preponderence of the evidence, that the defendants caused any harm.  The "science" might be sufficient to persuade the media, but I doubt it's sufficient in a court of law.

I think the judge is correct on this matter, but, unfortunately, all too often only the courts review these issues logically and care about separating truth from spin.

I commend you for recognizing that the 14th Amendment enters into it.  But you are debating yourself now.  

As you hinted (I think) the 14th and it's rather broad interpretation have served to apply the Bill of Rights on a more national scale.  Therefore the federal courts had an interest in protecting an individual from a municipality bent on siezing his property for a reason other than that allowed by the 'takings clause'.  They, alas, did not.  And at no point did they reason that the federal government had no interest in it because the Bill of Rights was an exercise in states' rights.  They expressly and specifically addressed the meaning of the takings clause.  Am I wrong here?

This is not an example of judiciary 'legislating', but it is a prime case of 'amending the Constitution' to say what it did not say and to invalidate what it DID say.  'Rule of law' people consider this morally repugnant.

As for your last question, the 'why' is irrelevant, is it not?  If it's true, it's true.

as I'm no scientist.  But I do know there has been much research lately into what ended the ice age.  One prominent theory now (not theory in the evolution sense) is that giant methane deposits under the ocean bursted, bursting into flame when they hit the surface.  This released massive amounts of CO2, and the attempts to date this event (which is known to happen) place it right before the start of a warming period.  Here is a link: http://www.spaceref.com/news/viewpr.html?pid=17820.

If you don't agree the evidence is there for a "causation," do you not think that even without ANY evidence at all (which a majority of scientist would back me up on this that there is), there is enough scientific knowledge to predict the results of the "greenhouse effect."  It seems as though you are saying that there is no evidence of that, let alone that humans have an impact.  Am I reading that correctly?

Thanks,

Cliff

It seems like you're trying to have your cake and eat it too.

With regards to Kelo, you assert that the Court is obliged by the Bill of Rights to reject the majority's impulse to seize the individual's property.

With regards to Griswold, you assert that the Court is obliged by the majority's impulse to seize the individual's contraceptives to ignore the Bill of Rights.

Now, you may argue that the Court is doing a crappy job of interpreting the Constitution.  But there's no consistency in saying that both Kelo and Griswold represent the judiciary improperly "imprisoning" us by usurping the powers of the other branches, as the two decisions seem to diamterically opposed in how they balance individual rights versus governmental intervention.

I never brought up Griswold, indeed I know rather little about it.  So I have no opinion to offer on that.

If I said Kelo was usurping the powers of the other branches I now retract that (if I had not already).  I stand by what I just said above -- This is not an example of judiciary 'legislating', but it is a prime case of 'amending the Constitution' to say what it did not say and to invalidate what it DID say.

that as the carbon dioxide content of air increases it retains more heat.  It is a simple chemical property of carbon dioxide and provable by experimentation.  You cannot argue with that scientific fact.  It is verifiable experimentally, mathematically, theoretically, through classic thermodynamics, physical chemistry, and quantum theory.  

You might be able to argue that there are other mechanisms that counteract the undeniable effect of increased carbon dioxide concentration in air. But the fact that increasing the concentration of carbon dioxide in air will increase air's retention of heat is an undeniable law of nature.

Sorry, I was replying in haste and didn't bother to scroll back up to your list of cases.

I was trying to use a slightly less polarizing case, but if you replace my comments about Griswold and contraceptives with Roe and abortion, it basically has the same effect.

Or, to use your example example of Miranda, that's another example of where the Court is essentially saying that the Bill of Rights supercedes the government's inclinations to set other rules.

In any event, Kelo is a case of the Court favoring government action over individual rights and most of your other examples are examples of the Court favoring individual rights over the government's predisposition.  I don't really understand how you can argue in both cases that it's usurpring the rights of the other branches.  In the case of Kelo, it is indisputably giving more power to other parts of the government.

Fundamentally, you seem to be saying that the Court is incorrectly interpreting the Constitution.  That's a legitimate viewpoint, but it seems to get lost in the midst of all the pejoratives.

We have no proof that higher Carbon Dioxide levels cause higher temperatures.

Well, the measured ice levels vs. temperatures are a correlation, certainly.

However, the Earth's atmosphere absorbs radiation from the surface, and experiments have shown that CO2 is good at this at IR wavelengths.  That is, the Earth radiates IR, but CO2 absorbs it instead of letting it back into space.

So to say, "We have no proof" belies the fact that we have experimental evidence for it.  And "proof" is a strange word to use anyway, since, for instance, we also have no proof that Einstein's Theory of Relativity is "correct", whatever that means.  We have lots of evidence, but something could come along tomorrow that blows it to shreds.

But I digress.

Doing a little thought experiment, if you had a magic lever that would instantaneously stuff the next 100 years of CO2 output into the atmosphere, would you feel safe pulling it?

I, for one, would love to know if we're hosing the environment.  Some people dismiss the suggestion out of hand, which I think is foolhardy.  Wouldn't they like to know, as well?  I shudder to think of what would happen if we ended up with another Little Ice Age--we'd be in so much trouble.

Let's say for the sake of argument (and I have no evidence for this, mind you, so don't jump on me for this hypothetical premise) that Katrina was the result of human influence, and the cost of the disaster could have been reduced by $150 billion if the US had reduced its CO2 emissions.  Also, let's say that level of CO2 reduction would have cost $100 billion to implement.

If that's the case, then I think we as a country should do some investment in CO2 reduction immediately...right?

So, on that note, I'd like to see more data to make sure we're spending our money wisely.  Oh, and to make sure we're doing all we can to keep the planet a decent place for four billion people to live.

she dismissed the case because there wasn't a matter of law there for her to rule on, it was a political question and a political decision should be made.

Well, let's slow this down some and chew thoroughly (Mom was right, after all).  You are couching the judicial rulings in terms of government rights vs individual rights, and telling me I'm being inconsistent.  Is that a fair synopsis?  But that's not the way I think of them, and I think I've been clear on this.  Although as a political viewpoint, I am disposed strongly on the side of individual rights.

To clarify my objections to our recent history of judiciary misdeeds (and BTW, I'm entitled to the perjoratives if I can defend them, and I have offered to do so -- just pick a phrase you think is not accurate).  

My argument, and my objection, is a 'rule of law' philosophy.  I disagree with your statement you seem to be saying that the Court is incorrectly interpreting the Constitution.  That is indeed one of 2 parts, but it scarcely captures what I'm saying even about that part.  They are not 'incorrectly interpreting' it -- they are uninterested in discerning and adhering to the meaning of it.  They come in with a viewpoint, and will either twist meanings into pretzels (Simmons), or rely on a series of precedents to invent new 'rights'(Roe), or will just ignore it outright (Kelo).

Part 2 -- legislating from the bench.  Overturning a PBA ban and Simmons (handy and classic examples) are both simply trump cards used to insert their philosophy, and serve to thwart the authority of Congress and legislatures to govern the nation.

Is this more clear?  Even if you don't agree with my point of view on Kelo, Simmons, and Roe, do you understand what my argument is?  Do you think or not think that the judiciary is heavily involved in writing law?

just pick a phrase you think is not accurate

Let's start with mullacracy. We'll ignore the fact that this isn't word and work with the emotive value of the word and what, I can only assume, the word is supposed to mean.  Are you seriously suggesting that our judiciary is looking to rule by harsh religous law?

They are not 'incorrectly interpreting' it -- they are uninterested in discerning and adhering to the meaning of it.

And you know this how?  

Do you think or not think that the judiciary is heavily involved in writing law

I do not think the judiciary is involved in writing law in any way.   Some of their decisions may give the IMPRESSION of that but they don't write laws.  The Supreme Court didn't write the law that allowed the City of New Haven to condemn property.  

The global surface temperature has increased 0.6 deg C since 1890, while atmospheric CO2 has increased from 290 to 365 ppmV (parts per million by volume). There is very little doubt that the CO2 increase is anthropogenic.

Those who insist that CO2 determines the global temperature do not realize the consequences of that belief.

Plotting the data since 1890 on temperature vs CO2 and drawing the best-fit logarithmic curve (which is easy in Excel) gives the climate sensitivity as 2.1 deg C (i.e., the temperature should rise 2.1 deg C for each doubling of CO2). This is in the middle of the range predicted by the Intergovernmental Panel on Climate Change (IPCC).

The Vostok Antarctic ice core record shows that, during the transitions from the last 4 ice ages to interglacial conditions (such as we now enjoy), the temperature increased by 10 or 12 deg C while the CO2 increased from 190 to 280 ppmV. These data give a much greater climate sensitivity of 14.7 deg C per CO2 doubling.

The simplest explanation of why the climate sensitivity was so much greater in the Pleistocene than now is that warming due to anthropogenic CO2 during the last century has offset an underlying cooling trend. Using the Pleistocene sensitivity, it is easy to calculate that, absent our emissions of CO2, the temperature now would be 4.8 deg C cooler than in 1890. This means that we would be deep into the next ice age, with ice a kilometer thick over most of Europe and over North America as far south as Kansas. In other words, most of the advanced nations would have ceased to exist.

If this is correct, we must conclude that it is only anthropogenic CO2 which has, so far, delayed the transition into a new ice age. Since the effects of a warmer climate are trivial compared to those of an ice age, the Precautionary Principle demands that we err on the side of warming, even if we are not certain.

The logical consequence of the theory that CO2 is the primary determinant of global temperature is thus that we must encourage rather than curb CO2 emissions, in olrder to prevent or at least delay the next ice age.

There is only one other explanation of the data which avoids this conclusion. It is that the global temperature is determined primarily by factors such as variations in the energy received from the sun, with CO2 having only a minor effect. If this is true, there is no need to curb anthropogenic emissions.

SUV drivers should be proud. Either their emissions don't matter, or they are saving civilization from the coming of the ice.

Philkc

I do not think the judiciary is involved in writing law in any way.  Some of their decisions may give the IMPRESSION of that but they don't write laws.  The Supreme Court didn't write the law that allowed the City of New Haven to condemn property.

If the Supreme Court didn't write the law could you provide a link to whoever did?

This is a question of semantics.  You're technically right that they didn't WRITE the law, they created it out of whole cloth.  They once again created a right which previously did not exist.

2001, Alexander v. Sandoval - reversed an Alabama decision which forced the state to accommodate non-English speakers on driver's license exams.

Reminds me of what my Con Law professor called the "Alabama Rule."  In essence, if you're the State of Alabama, and you're a party in a Supreme Court case, you lose.

As of the mid-90's, it was an ironclad rule. I think it remains so.  Why did Senator Sessions not ask Roberts about this one?

The Massachusetts High Court ruled that the state staute restricting marriage exclusively to one man and one woman did not end its  activity. Had they merely struck down the law, then no one could marry. In fact, one article of re-hearing appeal asserted an alternative argument that even if the court could strike down the statute, it surely could not re-write it. But the court did write an opinion that is a new law from whole cloth that allows same sex marriage.

Roe is pure written judge-made law, in very specific language about trimesters.

Examples are legion.

I'll get back to ya!

Conn. Gen. Stat. §8--186 et seq. (2005)

I cannot find the Section to which you refer. Is it available online?  I have searched the Connecticut General Statutues and can find sections 7, 9 & 10.  However, it seems to skip section 8.  Also, the site I was searching says it is updated through January 1, 2005.  Was this law really passed in 2005?

Any link would be helpful.

Sure, it's not a dictionary word, but it's used to describe the Iranian political system.  On the surface, they have a democratically (more-or-less) elected national congress that officially governs Iran.  But in fact, the mullahs, as everybody there and elsewhere know, are actually very much in charge.  The legislature is 'playing legislature' in the same sense that 5-year olds 'play house'.  So Iran is actually run by an unelected small group, and they run it with an iron fist, and with no interest in the well-being or freedom of the people, but mostly cater to their own fanciful whims.

I hope I don't have to explain the analogy to the judiciary in the USA.  I'm not positing 'harsh relgious law', but rulership by a mostly non-elected few who are quite literally answerable to nobody, and who rule not according to the Constitution but according to whatever suits them.  By aggressively attacking PBA bans and many, many smaller popular (i.e., legislative) attempts to put some curbs on abortion-on-demand, imposing legalization of same-sex "marriage" on unwilling states, by banning and restricting popular and traditional Christian worship in the public arena in a host of capricious ways -- most audaciously attacking the celebration of Christmas, the largest celebration by far, religious or otherwise, in America, and by shooting down a multitude of laws and ballot initiatives designed to address illegal immigration, the courts impose their will arrogantly on the people.  

***********

So far, as I score it -- mullacracy -- an apt and catchy summation of what's wrong with our judiciary.  Kind of like saying the KC Royals suck.  It's not nice, but it's hard to argue with 48-97.

For your convenience I have pasted here the original polemic that has gotten me in so much trouble.  In case you care to argue the specifics in more detail.

I only bash our judiciary because in my 40-year lifetime they have turned from a co-equal branch of the government into a smug little imperialist mullacracy that is busily neutering the other branches and inserting leftist theology into the Constitution.  And it's not like I have to work at finding things to criticize.

***********

Pluribus - They are not 'incorrectly interpreting' it -- they are uninterested in discerning and adhering to the meaning of it.

flyerhawk - And you know this how?  

Well, it's a little trite to say 'because only a nitwit or a person being wilfully ignorant, having studied the text and background of some of these often-mentioned rulings by SCOTUS, would fail to recognize the suffocating, overbearing, smug arrogance of these judges'.  That's actually my answer.  I don't think you are a nitwit at all, but I most certainly do think you apply a very convenient interpretation to things which are perfectly obvious to an objective person.

To exemplify what I mean, let me toss out a couple of phrases that may ring a bell:

"emanations and penumbras" -- I ask you, what did that mean to Douglas (literally: [S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance)?   It meant that even if a topic was not addressed in the Constitution, if a judge could 'read between the lines', 'connect the dots', or 'make out bunny shapes in the clouds', to suggest that the Constitution supported his point of view, then hey, he's free to run with it.  Don't kid yourself, that's exactly what that means, and is pretty much the judicial philosophy that we 'originalists' are trying to get rid of by elevating judges with a little humility and sense of duty to the Constitution and to the United States.

"evolving standards of decency" -- it's difficult to imagine a more arrogant and egregious case of judicial usurpation than that.  Kennedy used that phrase to justify a ruling that was clearly an exercise of his personal opinion.  

The question before the court: does capital punishment for people who committed capital crimes before their 18th birthday constitute 'cruel and unusual punishment' under the US Constitution?  Social acceptibility -- not of interest.  What do the French think?  -- Irrelevant. (the ruling's citation of international treaties and the 'overwhelming weight of international opinion' -- is that relevant in any way to the US Constitution?  Come on!  It's an exercise in sanctimony, and everybody knows it).   Evolving standards of decency?  Please.  The Constitution provides for a way to evolve -- it's called a Constitutional Amendment.  

Clearly the 5 justices led by Kennedy had their own viewpoint, and just plain ignored the Constition -- oh yeah, other than trotting out the phrase 'cruel and unual punishment'.

****

I do not think the judiciary is involved in writing law in any way.   Some of their decisions may give the IMPRESSION of that but they don't write laws.  The Supreme Court didn't write the law that allowed the City of New Haven to condemn property.  

You're welcome to your opinion.  Roe v Wade nullified laws in 46 states, and  along with Casey, made it impossible for the people to rule themselves.  It created a new law: "abortion is legal, and you may pass no law that significantly restricts abortion".  Holy Cow, sounds like a law to me.  And it didn't come from Congress, or a state legislature:  it came from SCOTUS.

Miranda v Arizona  resulted in the 'reading of Miranda rights'.  The common phraseology of the Miranda rights is similar everywhere, and is designed not to follow the Constitution, per se, but to avoid some judge throwing out a confession on the basis of Miranda v Arizona.  Miranda in EVERY MEANINGFUL SENSE created a new law that must be followed.

And for the record, as I have repeatedly and clearly stated, Kelo was not a case of judicial legislating, but is rather a textbook case of ignoring the plain, unequivocal meaning of the Constitution.

Leftist theology that has been inserted into the Constitution [by judiciary usurpation of legislative powers].

First, let me address some of these smaller points you are making.

State Supreme Court in Mass.  Smaller-scale example of the same thing, by the same crowd.  And I dispute 'based on the Massachussetts..Constitution'.  They based it on their own political views, and built a flimsy pretext around the state constitution.

Schiavoright you are, but so what?  

federal courts...have become decidely more conservative over the last twenty years not.  20 years ago a nativity scene might have been seen in a town square.

"traditional values" (with the exception of the very limited area of consensual sexual acts between adults), haven't had it so good in fifty years. You must be joking, but I missed the punch line.  First, 20 years ago a nativity scene might have been seen in a town square (echo).  Second, you should drop in on a public school sometime.  Or a mall.  Then talk to me about how "traditional values" haven't had it so good in 50 years. Oh, and PS, a rampant hyper-sexualized pop culture and the intensely loud gay lobby hardly constitutes a 'very limited area'.

OK, leftist theology recently inserted into the Constitution:

-- abortion is legal.  The executive and legislative branches may place no meaningful restrictions on it, including restrictions on partial-birth abortion.

-- any form of religious expression [if it is Christian] is not allowed in any venue which might have even a remote governmental connection.  Including a cross or the words 'Merry Christmas' on any public land or even in correspondence between government employees or elected officials on the clock or using governmental stationery or email.(I'm engaging in a little hyperbole here, but not much).

-- homosexual activity between consenting adults must not be restricted by law [sidebar -- whether or not we agree on the merits, this is a recent court decision that invalidated state laws that had stood for many decades -- and it's most definitely leftist theology].

-- capital punishment of persons who committed crimes before their 18th birthday are not allowed.

-- same-sex "marriage" must be allowed. (this is in-process and is actually likely to be defeated, and is so repugnant to a large percentage of Americans that something like 14 states have passed state contitution amendments to try to stop this)

And a close call worth mentioning.  By a 5-4 vote, SCOTUS narrowly overturned a lower-court ruling in Boy Scouts of America v Dale, which, if upheld, would have forced a private religious group to accept acknowledged homosexual men as scoutmasters.  We came very close to having yet another tenet of leftist theology added to the Cosntitution.  It would have read:

-- churches and private Christian groups may not apply moral standards to their members.

So, this is what I mean about leftist theology inserted into the US Constitution.  Savvy?  Each tenet was not voted on by the public, even indirectly thru their elected representatives.  Each was applied by judges.  Their acts can only be overturned by new Constitutional Amendments, or by flooding the judiciary with a new generation of judges who respect the Constitution and laws of the United States.

I'm a little confused.  Farther up, you claimed that you weren't talking about Griswold and weren't familiar with it.  But here you cite "emanations and penumbras" and say "because only a nitwit or a person being wilfully ignorant, having studied the text and background of some of these often-mentioned rulings by SCOTUS, would fail to recognize the suffocating, overbearing, smug arrogance of these judges" (emphasis added).  So have you read Griswold or not?  If you're not, what other case did Douglas use that langauge in?

I don't want to rehash an argument that I spent a lot of time writing about earlier in the week, but I do want to make the point again that there are examples where so-called "originalists" find meaning in the Constitution that is plainly not in the text nor in the original interpretation of those same words.  You worry that liberal judges strike down laws that represent the will of the people, but "originalist" judges like Scalia and Thomas vote to strike down acts of Congress nearly twice as often as, for example, Ginsburg and Bryer.  The bottom line is that conservative judges are no more deferential to the other branches than liberals are, and as far as I can tell, not particularly more likely to interpret the Constitution literally.  So, maybe your beef ends up being with judges in general, but then maybe we should be having more conversations about how to improve the overall quality of jurisprudence rather than trying to pack the court with judges that serve a particular group's ideology or approach to social issues.

(A closing note:  I recognize that, with the exception of Douglas, you haven't been bashing particular judges or pushing another set.  But, you do seem to get caught up on the standard set of conservative social causes above and there's a fairly broad readership here that is pushing a particular set of judges, so I'm making the point generally.)

Here is what Stevens says

After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. It began by upholding the lower court's determination that the takings were authorized by chapter 132, the State's municipal development statute. See Conn. Gen. Stat. §8--186 et seq. (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." 268 Conn., at 18--28, 843 A. 2d, at 515--521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Berman v. Parker, 348 U.S. 26 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A. 2d, at 527.

Here is section 8-186...

    Sec. 8-186. Declaration of policy. It is found and declared that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes and, in distressed municipalities, to lend funds to businesses and industries within a project area in accordance with such planning objectives are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.

http://cga.ct.gov/2005/pub/Chap132.htm#Sec8-186.htm

It meant that even if a topic was not addressed in the Constitution, if a judge could 'read between the lines', 'connect the dots', or 'make out bunny shapes in the clouds', to suggest that the Constitution supported his point of view, then hey, he's free to run with it.

So you're complaining about judge who is dead making a ruling 35 years ago?  Ok.  

Please tell me what the plain reading of the 8th Amendment is.  Please provide me with a definition, based solely on the Constitution, of what cruel and unusual means.  "trotting out" the phrase cruel and unusual?  So I take it you aren't a fan of that particular part of the Constitution?

are old decisions.  The religious display rulings were simply ignored in many parts of the country and they are now being litigated in a lot of places where the law of the land was ignored (especially in the south) does not mean the rules are new, just that nobody complained before.

Your third example was exactly the what I was referring to?  And why on earth should such activities be any concern of the government?

As for the fourth, cruel and unusual punishment is subject to evolving standards of decency.  You may not like it byt do you really think we should maintain punishment at the same levels they had over 200 years ago?  Many conservatives oppose the death penalty, the Catholic Church included.

Same sex marriage must only be allowed in Massachussets.  And again that was based on the MA state constitution, not the Federal Constitution.

The Boy Scout case was unique because the nature of the Boy Scouts as an organization that receives so much public funding.  Likewise, the non-discrimination cases with religious groups is only when they are receiving public funds.  If religious groups do not receive public funds they can discriminate to their hearts' content or even continue to discriminate for those functions that do not use public funds.

Time passes, my friend.  Let's just say that I've read it now.   Just keep in mind that, having not at that time commented on Griswold, I did not want it hung around my neck.

conservative judges are...not particularly more likely to interpret the Constitution literally.  Well, jb, we're just gonna have to disagree on that one.  I see a wide gulf there.

So, maybe your beef ends up being with judges in general, but then maybe we should be having more conversations about how to improve the overall quality of jurisprudence....I'll give a big amen on that.

...rather than trying to pack the court with judges that serve a particular group's ideology or approach to social issues.  It's no secret that I'm personally a committed conservative (both fiscon and socon,to use the lingo), and it's also no secret that my motivations regarding judicial philosophy are colored by my beliefs.  However, as I have repeatedly stated, my argument is a 'rule of law' argument.  The Constitution + Amendments + state constitutions + Acts of Congress + acts of state legislatures contitute 'The Law'.  Courts have a say in interpreting those, and in ruling on how the 'Acts' conform to the Constitution(s).  But that's all.  

Let's put it this way.  If (in a hypothetical USA where the federal judiciary did NOT meddle in politics) Congress passed and a president signed a law declaring that abortion rights were not to be seriously curtailed by local and state regulations [in short, the essence of Roe + Casey], I would of course be very pissed off.  I find it personally offensive and morally wrong.  How would I go about fighting to get that overturned?  By supporting congressional candidates and presidential candidates who oppose that, and by opposing candidates that support it.  I would be in that boat with about 200 million other voting-age Americans, many of whom would like a say-so in that question.  To my dying day I would fight that fight, but as long as the law stands, that's the law of the land.

In stark contrast, wWhat we have in the current sitution is Roe and Casey (amazingly enough, those are now 'laws', they are what is called 'case law', which is given the force of law only because the executive and legislative branches have continually ceded their own territory in a case of communal cowardice), decided by 7 unelected judges, 7 people that Americans could not vote out.  The voices of 200 million voters matter rather little in this equation.  They are not being self-governed, they have been trumped by a federal judiciary that invented things in the Constitution that were not there.

So when I say 'rule of law', do you know what I mean?  Law is law, passed by legislatures.  By and large, 'case law' should be printed on toilet paper, so that at least it has some constructive use.  I'm quite certain you don't agree with that.I can envision no scenario in which you can change my view on that, but if you must try, then go ahead.

So the fact that Wm O Douglas is dead makes his SCOTUS rulings void?  That'd be nice.

"trotting out"  I'm absolutely, as you know, a fan of 'that part' or any other part of the Constitution.  That court simply used that phrase as a pretext and twisted it beyond recognition, which I find offensive and cowardly.

Please provide me with a definition, based solely on the Constitution, of what cruel and unusual means.  The Constitution is not a dictionary, and it does not draw from Swahili.  We have to assume that words mean things, and would should assume that they mean what they SEEM to mean to a person with an decently competent grasp of American English, so I am going to go about it from a Merriam-Webster point of view.

Cruel -- m-w says "disposed to inflict pain or suffering" -- causing unnecessary suffering -- pain or humiliation.  Examples, you pull out their fingernails, you make them drink hemlock, or you walk them to the execution chamber stipped naked in full view of the public.  I would hope it's a universal given that lethal injection (if one MUST have capital punishment) is probably the least painful and the least undignified method of capital punishment ever devised.

Unusual -- m-w says "uncommon"->"not ordinarily encountered" .  It would mean that the average person would say to himself, 'who thinks up that stuff?'  Since we're talking about Simmons, let's put it this way:  the fact that 'only' 19 states (something like that) allow for the execution of minors, does not make it 'unusual'.  That's a stupid conclusion.

I don't think Anthony Kennedy is stupid.  I think he had a pre-made conclusion that he opposed the execution of murderers who committed their crime before their 18th birthday, and he found the closest think he could find to justify imposing his will on those 19 unwilling states.