April 30, 2010
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Judicial Activism
I’ve wanted to write about the topic of judicial activism soon especially considering the newest Supreme Court Battle that is about to be waged. As it turn out I don’t have to, because in a short succinct paragraph Glenn Greenwald said almost everything I wanted to say only better:
“The absolute dumbest political platitude in the vast canon of right-wing idiocies has long been the premise that courts act improperly — are engaged in “judicial activism” — whenever they declare a democratically enacted law invalid on the ground that it is unconstitutional. That’s one of the central functions of the courts, a linchpin of how our Constitutional Republic operates. We’re not a pure democracy precisely because there are limits on what democratic majorities are permitted to do, and those limits are set forth in the Constitution, which courts have the responsibility to interpret and apply. When judges strike down laws because they violate Constitutional guarantees, that’s not a subversion of our political system; it’s a vindication, a crucial safeguarding of it.”There is no such thing as a judicial activist Judge. The very acts required of being a Judge faithful to the tenants of the constitution are the same acts that would be labeled as “judicial activism”.
If there is a coherent concept of judicial activism I haven’t heard it. Certainly the mere act of overturning laws passed by by Congress or actions engaged in by the Executive would not qualify. Nor would simply interpreting the limits and scopes of those laws and edicts. That’s part of their job too.
Judges can certainly be wrong. They may even be dishonest or deceptive or irrational. They may even cause very great harm by their proclamations. Judges may even be corrupt. There are certainly such things as bad Judges. But can there really be “activist” Judges? I just don’t see any value in complaining about judges doing their job in accordance with their conscience by labeling them as “activists”. That to me just seems like a way for critics of certain Judges actions to wrap their critiques in a flag of democracy to make them seem more palatable.
And at the same I think it’s a way to capitalize on and expand existing measures to smear the term “activist” as a bad term. Just like “communist”, “socialist”, “liberal”, “progressive” and even “community organizer” there is an ongoing effort from the Right to try and change the terms anyone on the Left uses to describe themselves into “bad words” worthy of our scorn.
Comments (34)
Here’s good talk with Associate Justice Stephen Breyer addressing “Judicial Activism”– http://www.youtube.com/watch?v=Pup2teJtJAA
yeah those evil activists…just like those useless community organizers and those pinko supporters of the absurd notion of social justice.
LOL
good blog!
I couldn’t agree more. ”Judicial activism” is an infuriating term.
I am not smart enough for this subject.
I have a ‘feeling’ that the founding fathers were far more religious than we give them credit for, and that their form of government they created reflected their distrust of government, hence 3 branches.
I feel that outside ‘activists have found a way to promote their agenda through the courts legally, knowing they could not do it through the legislative process.
I avoid specifics because those who disagree with me would start calling my well known names to shut people like me up.
I shut voluntarily and just watch the news unfold before my eyes.
Are we a better nation today than we were in 1850 or 1950? Are we more secure?
I think we have lost something along the way.
I agree with your premise that the judges are not activist in a law changing way, but interpreting the constitution the best that the can. They fact that we have amendments to the constitution proves that it is a living, changing document.
blessings
frank
@ANVRSADDAY -
“Are we a better nation today than we were in 1850 or 1950? Are we more secure?”
YES.
In 1850 I would have been a slave. In 1950 I wouldn’t have been able to sit at the same table at a restaurant as most of the people I talk to on this blog.
We are certainly a much better and more secure nation for me and my family today. And honestly I think we are ALL about a billion times better off now. So I find it very hard to see what we’ve lost that was so essential compared to those eras.
We do have problems with corporate influence on our politics and indeed on even our judicial system. Sometimes they even try to use the judicial system to bypass difficulties with the legislature just as you say. But I think that’s always been a huge part of the equation. It brought our nation to the great Depression and now it’s brought us to a great recession and two wars. But overall we’re still moving forward in a million different ways.
Being a Judge requires a struggle to remain
independent and so does being a Politician. It’s part of the job description.
I completely agree with you about the constitution being a living changing document and I also agree about (some of) the founding father’s deep distrust of government. I’m not buying the more religious part though. But I don’t think how religious the founding fathers were or weren’t is relevant at all in terms of interpreting the constitution.
@HappyLemming - Great video! Thanks. Breyer makes greats points. I also liked the video beneath it of Sanda Day O’Connor on Judicial Activism: “I always thought that an activist judge was one who got up in the morning and went to work.”
There is no such thing as a judicial activist Judge.
That is not true. Liberal judges love nothing more than to legislate from the bench. That is an usurpation of legislative power not granted in the Constitution. It’s one thing to judge a law constitutional or not. It’s another to create law.
Roe v Wade is an example of the Court creating law.
Also, in order to judge whether a law is constitutional there must be some sort of precident or related statement in the Constitution.
Liberal activist Justice Stevens admitted that he uses his feelings to determine law. And Justice Sotomayor admitted that she uses race as basis for judging.
That makes liberal activists on the court judicial disasters.
@LoBornlytesThoughtPalace - …Liberal judges love nothing more than to legislate from the bench. That is an usurpation of legislative power not granted in the Constitution. It’s one thing to judge a law constitutional or not. It’s another to create law.
In the common law system, it is precisely the job of judges to make law. Any 1L student, any basic legal reasoning text would acknowledge this point. I can even pull for you a Scalia quote on this matter.
Any Federal statute or legislation contains a generally stated, finite block of text. It is impossible for any legislative body to account for all possible applications or exceptions to the bill. In consideration of purpose, precedent, and text, judges fill in the inevitable gaps and pave the inconsistent bumps of applying statute.
It is in this sense, they “make” law.
Roe v Wade is an example of the Court creating law.
1. There is a long line of precedents– guarenteeing basic rights to the family, to child-raising, and reproductive autonomy– that paved the road to the Roe ruling. Roe v. Wade didn’t *poof* out of thin air.
2. The basis for Roe v. Wade is direclty rooted in the Constitution. The Fourteenth Amendment was crafted in response to Reconstruction-era Black Laws. The Amendment seeked to to guarentee, in general language, “due process”– a guaranteeing of basic, fundamental rights.
Liberal activist Justice Stevens admitted that he uses his feelings to determine law. And Justice Sotomayor admitted that she uses race as basis for judging.
The great thing about the Supreme Court is that there is a written record for all decisions made. It is one thing to disagree with the results of a ruling, it is another thing all together to reject its justification.
If you think that Justice Stevens and Justice Sotomayor brought prejudice and racism into their ruling, I’d love to see the supporting citations.
@HappyLemming - In the common law system, it is precisely the job of judges to make law
But under our US system there is separation of powers. The judicial branch may not legislate.
If you think that Justice Stevens and Justice Sotomayor brought prejudice and racism into their ruling, I’d love to see the supporting citations.
It’s there own words. I read Sotomayors words in the newspaper so it’s common knowledge. And I read Stevens quote in the Wall Street Journal. I’ll post links if I come across then again.
@LoBornlytesThoughtPalace - But under our US system there is separation of powers. The judicial branch may not legislate.
The judicial branch checks the legilsative branch. The judicial branch rule on the applications of legislated statutes and bills.
It’s there own words. I read Sotomayors words in the newspaper so it’s common knowledge. And I read Stevens quote in the Wall Street Journal. I’ll post links if I come across then again.
Oh, no problemo.
What you’ve attributed to Sotomayor and Stevens is probably true for most of us: The totality of our beliefs, experiences, and values effect our considerations and decisions.
I think it is a good thing that different judges bring to the bench a variety of backgrounds and perspectives to the bench. Sotomayor happens to be a woman and an ethnic minority with humble beginnings. Stevens happenes to be a WW II vet and the only justice not from the East Coast.
But it is another thing, all together, to incorporate non-legal justifications into court opinions. Race, values, and experiences inevitably color perspective, but they should not in and of themselves dictate court rulings.
@HappyLemming - The judicial branch checks the legilsative branch. The judicial branch rule on the applications of legislated statutes and bills.
Right. But you claimed that it was okay for the judiciary to legislate from the bench. They may not. Just as the President may not create laws, neither may the judiciary.
The totality of our beliefs, experiences, and values effect our considerations and decisions.
That is quintessential activist liberalism. Scalia, Roberts, Alito and Thomas only consider the law as is proper for any member of the judiciary. Justice must be blind, that is, it must not express favoritism. Beliefs, experiences and values smack of bias and thus invalidate any attempt at fairness and prudence.
@LoBornlytesThoughtPalace - Right. But you claimed that it was okay for the judiciary to legislate from the bench. They may not. Just as the President may not create laws, neither may the judiciary.
Ah, okay.
Judges make law. When I get home, I can quote this point clearly from Chapter 1 of one of Scalia’s books. Any lawyer, judge in the country recognizes this.
Judges don’t make law out of the blue, they don’t modify law through bills and legislation as congress does. Rather, through ruling on specific statutes in specific cases, they dictate the application, interpretation, and scope of existing law. This role of the judge is both necessary and inescapable– any statute is written in general langauge in a finite block of text, and there will always be ambiguities in application or questions of conflicts with other law.
That is quintessential activist liberalism.
No it’s not– “feelings” and “experiences” come with being human. Those 7 men and 2 women sitting on the bench are human beings. It is impossible for any of them to divorce their childhood, culture, or faith from the crevices of their minds.
This itself doesn’t mean that non-legal biases creep into the opinion-writing of “liberal” or “conservative” justices.
If you disagree, then I challenge you to find me cases and opinions with your charged prejudices and racism.
@LoBornlytesThoughtPalace - A Matter of Interpretation by Antonin Scalia, p.6:
“Common-law courts performed two functions: One was to apply the law to the facts… But the second function, and the more important one, was to make law.”
@HappyLemming - So, Scalia gives a history lesson. It does not change the fact that the Founders designed our government so its power would be split between 3 independent branches. The Supreme Court may not legislate from the bench.
@LoBornlytesThoughtPalace - So, Scalia gives a history lesson.
The U.S. operates in a common-law system. Applicable history!
@HappyLemming - This itself doesn’t mean that non-legal biases creep into the opinion-writing of “liberal” or “conservative” justices.
Creep is not the word that liberals use. Liberals believe in full blown bias. Stevens and Sotomayor both admitted it. Conservatives do not believe in personal bias as a means to judge the law.
That makes Conservatives better justices because they are more interested in what the Founders thought then what they, the justices personally think, feel or experience.
@LoBornlytesThoughtPalace - Creep is not the word that liberals use. Liberals believe in full blown bias. Stevens and Sotomayor both admitted it. Conservatives do not believe in personal bias as a means to judge the law.
Support your claim: Give me specific cases, and examples, of this so-called liberal bias. This is the third time I pushed for you to put form to this assertion.
@HappyLemming - The U.S. operates in a common-law system. Applicable history!
The legal system may operate according to common law but the legal system is not the Supreme Court.The Supreme Court is a branch of the federal government on equal footing with Congress and the Executive.
@HappyLemming - I already mentioned Roe v Wade. There are all the affirmative action rulings and lately the Kelo decision that allowed govenments to take over private businesses in order to enlarge the tax base.
Liberals love taxes because they make government more powerful. The Kelo decision was a judicial assault on private property.
@LoBornlytesThoughtPalace - I already mentioned Roe v Wade.
In Roe v. Wade, the Supreme Court didn’t “make law,” it struck down unconstitutional law. I’ve already rebutted this point:
1. There is a long line of precedents– guarenteeing basic rights to the family, to child-raising, and reproductive autonomy– that paved the road to the Roe ruling. Roe v. Wade didn’t *poof* out of thin air.
2. The basis for Roe v. Wade is direclty rooted in the Constitution. The Fourteenth Amendment was crafted in response to Reconstruction-era Black Laws. The Amendment seeked to to guarentee, in general language, “due process”– a guaranteeing of basic, fundamental rights.
Also, note that the holding of Roe v. Wade was upheld in a later case 6-3, with the much more conservative Reinquest Court. (Kennedy helped write the majority opinion)
There are all the affirmative action rulings…
In most of the high-profile cases, affirmitive-action was actually struck down.
The Kelo decision was a judicial assault on private property.
The Federal right to eminent domain was written explicitly into the Constitution.
@HappyLemming - 1. There is a long line of precedents– guarenteeing basic rights to the family, to child-raising, and reproductive autonomy– that paved the road to the Roe ruling. Roe v. Wade didn’t *poof* out of thin air.
Each human being has the God-given unalienable right to life. Abortion anihilates that right by legalizing murder. Additionally Roe v Wade is an assault by the federal government on states rights by making abortion a right.
Abortion is not a right. It is a medical procedure.
All your arguments about due process are completely irrelevant. Conservatives call what you’re doing “twisting the law into a pretzel”.
@LoBornlytesThoughtPalace - Is privacy a right? That’s the grounds for roe v. wade. There’s no twisting there at all. It’s straight forward.
There is no right to life guaranteed by the constitution. Nor is it specified anywhere in law that a fetus in the first trimester constitutes a life or a human being. That’s an article of faith you are using to specify the legal outcome that you WANT to be true. You are the one twisting the law to serve your own inherent biases.
@nephyo - People have a right to privacy from the government, not a right to privacy to commit murder. Each human being has the unalienable right to life. Privacy does not negate the right to life.
The God-given unalienable right to life is in the Declaration of Independence.
Applying privacy to Roe v Wade is liberal pretzel making.
@LoBornlytesThoughtPalace -
“The legal system may operate according to
common law but the legal system is not the Supreme Court.The Supreme
Court is a branch of the federal government on equal footing with
Congress and the Executive.”
The Supreme Court does not by itself constitute the thrid branch of federal government. The third branch of government consists of the Supreme Court and any other courts established by Congress in accordance with the powers invested in them by the constitution, provided they follow certain basic rules such as lifetime appointments. Right now that consists of 13 United States courts of appeals, the 94 United States district courts, and the U.S. Court of International Trade.
All of these courts represent the foundation of our legal system. That legal system absolutely uses common law as a basis for making decisions. All common law IS is using the gargantuan body of past legal decisions as a basis for future decisions. I’ve never heard of anyone arguing that the Supreme Court or any court should ignore precedent entirely and not make decisions on the basis of common law.
That’s a far more radical position than most of even the most conservative justices in the country are willing to adopt.
@nephyo - Nor is it specified anywhere in law that a fetus in the first trimester constitutes a life or a human being.
America was settled by Christian people. Christians believe that life begins at conception. After all conception means beginning. What the God-hating left has done is hijack and destroy American culture and language and replace it with the culture and language of death.
That life begins at conception is not an article of faith. Science has given us the power to see life begin at the moment of conception with our own eyes. What do we believe, leftist gobble-d-gook or our own lying eyes? You folks demand scientific proof at every turn and when it’s provided about something you not into you deny it.
There is no denying that life begins at conception, that is unless you are a leftist or a lawyer.
@LoBornlytesThoughtPalace - My point is that if you are saying the only thing Judges should base their decisions on is the Constitution then you can’t have them base their decisions on a fundamental “right to life”. That isn’t in the constitution. It’s in the Declaration of Independence and the U.N. Convention on Human Rights.
The fact is NOT EVERYONE AGREES WITH YOU. A lot of people DON’T think that a fetus in the first trimester constitutes a human life. I am one of those people. If you are asking Judges to acknowledge that as an absolute fact and then craft their interpretations of the law around it then you are asking them to use their own biases about what constitutes human life as a part of their decision making. The very same problem you are accusing liberal Justices of having.
That’s why Judges make decisions based on common law, and try not to use their own biases. Common law acknowledges a right to privacy and a right to reproductive autonomy. It was not “judicial activism” to come up with that decision. It was a reasonable interpretation of the law and the constitution that you just happen to disagree with. That’s fine too. Nothing wrong with your diagreeing. But arguing that the Justices acted improperly here because they didn’t take into account your FAITH in the nature of human life and the infallibility of the constitution strikes me as ridiculous.
@nephyo - My point is that if you are saying the only thing Judges should base their decisions on is the Constitution then you can’t have them base their decisions on a fundamental “right to life”.
I didn’t say that.
Whereas liberal justices base their decisions on subjective factors such as personal point of view, conservative justices seek the intent of the Founders. That is most important.
The way our government was put together has intrinsic meaning. Liberals manufacture meaning at a whim and thus destroy the original meaning that the Founders gave to their design. Without understanding the original intent of the Founders, the Constitution becomes much more than a living document, it becomes Gumby.
Actually, it’s thoroughly possible to construct a workable definition of an activist judge.
An activist judge is a bad one, one who is corrupt in such a way that they allow their political preferences to take precedence over the law and the constitution, and thus hand down incorrect rulings which create dangerous precedents. These exist at all points of the political spectrum. On the other hand, they are much more rare than many think. Judges in general are a fairly conservative bunch (in the sense of not wanting to create change, not in the sense we now use the word in politics.) They don’t want to be reversed on appeal and they don’t want to create new law, even when it’s their job (as it sometimes is in common-law jurisdictions) to do so.
Of course, common-law being what it is, such corruption is at best difficult to establish.
@LoBornlytesThoughtPalace - Life doesn’t begin at conception. That’s absurd. Life begins *before* conception. There’s simply no denying that sperm and egg cells meet a reasonable biological definition of life. For that matter, skin cells are both alive and human! Killing them must also be murder.
Christians do not universally believe that human life worthy of respect as such begins at conception, nor is this view supported by the Bible (which explicitly permits abortion by beating a pregnant woman until she miscarries.) More importantly, however, America as a nation was founded by non-Christians (only some 5% of colonial Americans were churchgoing Christians, and a firm majority of the Founding Fathers were atheists or deists) who most importantly believed in the necessity of an absolute separation of church and state. It is never acceptable to enact (or, for that matter, strike down) a law on religious grounds. That violates the Constitution (specifically the disestablishment clause.)
While we’re at it, the Declaration of Independence is not a law nor is it the foundation for any of the laws of the United States of America.
Roe v. Wade merely preserved women against reproductive enslavement by the state in cases where the Court determined that the state had no legitimate interest that could justify that enslavement (I should say that I disagree with the court. I find that there is no compelling case for any legitimate state interest which could justify such enslavement.) Despite my disagreement with the court’s opinion in Roe v. Wade, I do not consider it a case of judicial activism under the definition above.
When deciding whether or not a judge is an activist, don’t forget to apply Hanlon’s Razor:
Never attribute to malice that which can be adequately explained by stupidity.
Judges are human and therefore stupid.
@BobRichter - Life doesn’t begin at conception. That’s absurd. Life begins *before* conception. There’s simply no denying that sperm and egg cells meet a reasonable biological definition of life. For that matter, skin cells are both alive and human! Killing them must also be murder.
Sperm and egg are alive but they are not human life. Human life begins at conception. Just because the embryo doesn’t look like you doesn’t mean you can discriminate against it and murder it. It’s a human being at the beginning of its life.
@LoBornlytesThoughtPalace - There is no universally accepted definition of what constitutes human life. Is an embryo a human because it has a complete genome? Don’t be absurd. Skin cells have a complete genome. Is an embryo a human because it has the potential to grow into a human being? Of course not. Egg cells have an almost identical potential, and even skin cells have the fundamental potential (as established by said complete genome,) provided only the intervention of technology (which we are not obliged to provide.)
Clearly we have to draw some arbitrary dividing line. Thankfully, the Constitution provides one: birth. After all, a person is considered a natural citizen of the United States of America under the fourteenth amendment only upon being born. Before that, one supposes they are some kind of nationless alien.
The sticking point here is viability. A Fetus is not independently viable. The potential to become meaningfully human does not exist without the service of the bearing woman’s organs which the state may not compel her to provide. The state is barred from enslaving citizens, and while there are some cases where the state has been allowed to reach around this prohibition (alimony and conscription are examples) it is still unambiguously prohibited by the fourteenth amendment.
Even if we stipulate to the absurd suggestion that a fetus is a person, a fetus is a person suffering from a potentially lethal illness of nonviability. The state may be compelled to intervene in an attempt to preserve this person’s life (though it has not felt such a need in the cases of actual citizens faced with similar challenges) but it may not simply enslave the nearest woman to serve this interest.
@BobRichter - There is no universally accepted definition of what constitutes human life. Is an embryo a human because it has a complete genome?
Simple reasoning holds the answer to your question. We live in a universe governed by cause and effect. If rabbits mate, their off-spring will be rabbits not elephants. That is cause and effect.
Human off-spring result from human mating. Therefore whenever a human embryo comes into being we know it is the result of the union between human egg and sperm.
We need no universal definition for what can be reasoned simply and for what can be seen with our own eyes. You are trying to confuse what is obvious with sophist malarky.
@LoBornlytesThoughtPalace - “simple reasoning” in your case does not appear to be reasoning at all. You attempt to answer the question of “at what point is a rabbit a rabbit” with an answer to “how do you make a rabbit.” The response is therefore worse than irrelevant. It provides no guidance at all as to where the dividing line lies between something with the potential to become a rabbit and something which is, in fact, a rabbit.
A rabbit egg is not a rabbit. A rabbit sperm is not a rabbit. A rabbit egg and sperm are not a rabbit even taken together. At what point is a rabbit a rabbit?
The conventional answer (and one amusingly admitted in the logic of what you wrote) is that a rabbit is a rabbit at birth. Prior to that, it is simply a kind of pre-rabbit and not a rabbit at all. Of course, that’s only one possible answer.
But again, none of that is actually relevant. The state is barred from enslaving its citizens, no matter how noble might be its purpose in doing so.
When I think of the term “activist judge”, I think of someone with a deliberate hidden agenda to skew any law interpretation disputes that arise in a specific direction.
I see politics and the media using the term to mean any judge who is willing to overturn precedent. Of course, this contradicts that our constitution is living and breathing. Using this standard would mean that the 1st laws created would stay on the books forever regardless of how obsolete or unfair any of them may be determined to be.
It’s also interesting that activism is painted as coming from the left when it also comes from the right, in the sense that laws have been struck down or modified to take a more conservative interpretation on things.
But in absolute definition, we would be hard pressed to prove any of our nominated judges were truly activist as in having a hidden agenda. If we want to hold to the political/media definition, then ALL judges should be willing to be activist when needed to correct a law that has been determined to be unjust or misapplied.