"Activist" Judges

[MtSmalls]

With the coming nomination (and probable nomination fight) of the next SC judge, it is interesting to note the current Administration's dislike for what they call "activist" judges. This label is usually applied with little or no definition, but plenty of derision.

In an interesting Op-Ed (http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?) in the NYT today, a Yale law school professor looked at all of the decisions the current SC judges have made since 1994 (when the last judge was appointed). There were 64 cases (granted a small number) where the SC was asked to strike down or uphold a law passed by Congress. He noted which judges, whether in the majority or dissent, were more likely to strike down such a law. The big surprise? Clarence Thomas (65%), Kennedy (64%) and Scalia (56%) were most likely to "legislate" from the bench and vote for striking down a law. Breyer (28%), Ginsburg (39%) and Stevens (39%) were the three least likely.

Now, which group again should be considered the "activist" judges? The hard line, strict constructionists?? or the more left leaning liberal judges??

[lehighguy]

The metric he is using is completely meaningless. You have to examine on a case by case basis.

Example:
Congress passes a law resegregating schools.
Scalia votes that it is unconstitutional and strikes down the law.
Under this anaylsis Scalia is an "activist" judge merely because he enforced the constitution (a document meant to limit the power of the legislator).

It's not surprising that they have to reinforce the constitution so often these days, legislators have decided to completely ignore it as part of thier wild power grab.

It's not meaningless if you accept his premise, which is that Congress can be expected to pass laws that it believes pass constitutional muster.

[DVaut1]

[ QUOTE ]
The metric he is using is completely meaningless. You have to examine on a case by case basis.

Example:
Congress passes a law resegregating schools.
Scalia votes that it is unconstitutional and strikes down the law.
Under this anaylsis Scalia is an "activist" judge merely because he enforced the constitution (a document meant to limit the power of the legislator).

[/ QUOTE ]

I think your response is much more a critique of why the 'activist judge' label is hollow/meaningless than it is a criticism of the professor's metric.

[kurto]

[ QUOTE ]
It's not meaningless if you accept his premise, which is that Congress can be expected to pass laws that it believes pass constitutional muster.


[/ QUOTE ]

Who would accept that premise? Laws are passed all the time that don't pass 'muster.' Its really one of the points of the judicial branch to correct it when it happens.

You can't just decide to ignore this.

[canis582]

http://en.wikipedia.org/wiki/Marbury_v._Madison

[[censored]]

He should instead be looking at laws passed by States ruled unconstitutional as well as long standing laws/ traditions which the court ruled unconstitutional.

The whole conservative/ liberal arguement has much more to do with which powers are reserved for the states and which are claimed by the federal goverment. A conservative is not against passing laws which restrict behavior but rather simply limiting the power of the federal government to either restrict behavior or grant rights as limited under the consitution. This is why is takes a constitutional amendment to override a SC decision.

Conservatives are often defined as being against all restrictions/laws so that they later can be labeled as hypocrites by liberals.

The CA medical marijuana dispute is a good judge as to whether someone is truly a conservative which does allow one to be against medical marijuana yet still disagree with the SC decision.

[lehighguy]

Good link

[lehighguy]

Actually, the supreme courts PRIMARY responsibility is to determine is laws passed by the legislator comply with constitution. It is its main reason for existance.

[lehighguy]

There is one way, in my view, that you can be an "activist" judge.

You reinterpret the constitution in a way that was not the original intent of the article when it was written. When you start to do this you are effectively legislating. This is not the place of the court. If the people wish to change the wording/meaning of the constitution they should do it through the democratic process (amendments).

Justices do this all the time however, thus the label "activist".

[lehighguy]

I don't even think its that simple. You really need to do a case by case analysis. What matters more then the decision people arrive at is HOW they arrived at it.

[ QUOTE ]
Laws are passed all the time that don't pass 'muster.'

[/ QUOTE ]

To say that laws are passed "all the time" that don't meet constitutional requirements is a huge overstatement. Quite frankly, it's nonsense.

[ QUOTE ]
Actually, the supreme courts PRIMARY responsibility is to determine is laws passed by the legislator comply with constitution. It is its main reason for existance.

[/ QUOTE ]

I certainly agree that this is one of the Supreme Court's primary responsibilities. But I don't see how that affects the professor's theory. If you accept the premise that, in the whole, Congress passes laws that meet the constitution's requirements, then the professor says that the more a judge votes to overturn a law, the more "activist" he/she is. Whether one agrees with the professor's conclusion depends on one's definition of "activist".

[andyfox]

Original intent is a myth.

[natedogg]

Activist judge just means a judge who decided against your side. That is all. It has nothing to do with upholding or overturning laws.

And... these stats confirm my opinion on those three. They are cowardly stooges.

natedogg

[andyfox]

"Activist judge just means a judge who decided against your side."

Something on which we agree.

[ACPlayer]

[ QUOTE ]
against your side

[/ QUOTE ]

Can both sides be loyal and patriotic Americans? Or is an opposing view grounds for calling the miscreants America haters?

[lehighguy]

I think Congress is passing lots of laws that don't pass constitutional muster. This is why you need to examine on a case by case basis.

[lehighguy]

Care to elaborate on you one sentence rebuttal.

[ QUOTE ]
I think Congress is passing lots of laws that don't pass constitutional muster. This is why you need to examine on a case by case basis.

[/ QUOTE ]

You think wrong. Do you have any idea how many laws Congress passes in a year? And are you are aware of the miniscule percentage of those that get overturned as unconstitutional, by any court?

[lehighguy]

Well are we going to classify a lot by the percentage in relation to the whole or a lot in terms of absolute laws passed that violate the constitution.

Even if 1% of laws pass by congress violate the constitution, it is the courts duty to overturn them. Sure the court doesn't have to get involved if congress changes the tax code, but it does have to get involved in situations like Kelo.

I think you are looking for some type of quick fix label to apply to judges based on a flawed mathematical metric. Instead, you should examine the justices's thought process on each individual case to determine if they effectively defended the constitution.

[ACPlayer]

In the discussion about activist judges one thing we forget is that all nine judges are busy defending the consitution. None of them is working to undermine the constitution.

It behoves us to examine why the minority and the majority both independently believe that they are defending the constitution in the ruling. If you disagree with the result of the ruling does not mean that the other side is undermining the consitution. Instead try to understand how the ruling fits in with a reasonable interpretation of the founding document. Then if you still want a different outcome, call your representative.

[lehighguy]

I understand that they believe they are defending the constitution, but when the reasoning they use seems either absurd or beyond the scope of the court one can take issue with it. After all, if congress passes a law I don't like I can vote against the person who introduced it. If the supreme court comes to a ruling I have no recourse.

I think part of the problems the court has had is lazy legislators. Many issues they've had to rule on are ones that congress should have tackled, but didn't. However, I don't think that's an excuse to act like the legislator.

In other cases (Kelo) I think the court has had jurisdiction, but advocated that responsibility to the legislator. This is just as bad as assuming you have jurisdiction when you don't.

[ACPlayer]

One can take issue with anything one wants to.

However, to say that a reasoning is absurd or beyond the scope (specially by a lay person, however well read) is a bit much for me. These are people who live, eat, sleep with the constitution and to say the reasoning is absurd is absurd. Any intelligent person should be able to write a convincing essay defending both sides.

Most of the time what a lay person is saying is that they dont like the outcome and then blames the judges for being activist or using absurd reasoning.

In Kelo, I could argue both sides (and in my comments on Thomas' decision I kind of did). From a public policy perspective I believe that local authorities should have the ability to implement plans like the Fort Trumbull revitalization to help their community as a whole improve. THat is what they are elected for and if New London doesn't like them, kick em out. I am glad that the majority of the judges believe it is constitutional to do so.

[ QUOTE ]
Well are we going to classify a lot by the percentage in relation to the whole or a lot in terms of absolute laws passed that violate the constitution.

Even if 1% of laws pass by congress violate the constitution, it is the courts duty to overturn them. Sure the court doesn't have to get involved if congress changes the tax code, but it does have to get involved in situations like Kelo.

I think you are looking for some type of quick fix label to apply to judges based on a flawed mathematical metric. Instead, you should examine the justices's thought process on each individual case to determine if they effectively defended the constitution.

[/ QUOTE ]

I am not arguing with you about who is or is not an "activist" judge or whether judges have a duty to overturn laws they feel violate the constitution. I am taking issue with the broad, unsupportable statements you make to support whatever your position is. There's nothing wrong with having a position, but that position should be based on facts and reality and not on inflammatory things you hear on talk radio.

[lehighguy]

If the people wish to change the meaning of terms in the constitution they should do so through the amendment process. For instance, if you wanted to change "public use" to "public purpose" I would be a lot less agitated then by having the court redefine the term itself. While I would vote against such an amendment because I believe it to be bad public policy, I would much more readily accept having the article redefined via the amendment process where the fate would be up to publically elected officials rather then appointed judges.

[lehighguy]

What broad, unsupportable statements am I making?

[etgryphon]

[ QUOTE ]
If the people wish to change the meaning of terms in the constitution they should do so through the amendment process. For instance, if you wanted to change "public use" to "public purpose" I would be a lot less agitated then by having the court redefine the term itself. While I would vote against such an amendment because I believe it to be bad public policy, I would much more readily accept having the article redefined via the amendment process where the fate would be up to publically elected officials rather then appointed judges.

[/ QUOTE ]

Couldn't have said it better.

-Gryph

[etgryphon]

Wow, That is one of the most poor ways of defining "judicial activism". I'm surprise the professor even considered this as a proper benchmark.

So basically what he is saying is the majority rule is king. I doubt he would support that definition as it is applied to judicial nomination process and the use of the filibuster.

If the main point of the post and OPED is to say the common lexicon meaning of "judicial activism" is that it is a ruling that you don't agree with, then I agree.

I think judical activism should be defined as anytime the judiciary rules in contrary to the common meaning of an element of the constitution and are influenced more by political trends and opt to conform the law rather than to defer the standing political process to change and add laws/amendments.

-Gryph

[MtSmalls]

While there has never been a definition of 'activist judges' as we have heard the rallying cry of the right wing echo chamber, it is often followed by the phrase, 'legislating from the bench'. The clearest incidence of this would be overturning legislation that is passed by congress and signed by the President. By that measure, the strict constructionists are clearly doing more of this. The three most liberal judges on the bench are SUPPORTING the elected members of congress.

[lehighguy]

I'm not going to repeat myself. Read some of the post I already made on this topic. This metric is completely worthless.

If a bill violates the constitution, the court should strike it down.
If a bill doesn't violate the constitution, then it shouldn't be struck down.

If a justice strikes down a bill, it may or may not be justified. You have to examine the cases on an individual basis.

[ACPlayer]

I refer you to Thomas' dissent where he at least (appears to) acknowledges that there is some contention on the meaning of the word "use" at the time the constitution was written.

In today's the use of the word use -- there is plenty of leeway as to what constitutes use. When the Feds sieze land for a super secret military installation (as they can) the public cant use it like they can a road, for example. Similarly with land taken for a canal to be used exclusively for irrigation. Or the land that used to be taken in support of mills.

So, what exactly is public use. It should be up to the elected officials to define it and not up to the judiciary to decide. The judiciary should be able to step in when the purported use is a pretext, which can be determined by the facts of the particular case(hopefully).

The more I have read the more I think that the quality of the majority opinion and Thomas' opinion stand up to scrutiny, I dont like the dissenters opinion. Of course all this is with the eyes of a non-lawyer.

[ACPlayer]

[ QUOTE ]
it may or may not be justified.

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Who decides this?

[ QUOTE ]
What broad, unsupportable statements am I making?

[/ QUOTE ]

"I think Congress is passing lots of laws that don't pass constitutional muster."

[etgryphon]

[ QUOTE ]
The clearest incidence of this would be overturning legislation that is passed by congress and signed by the President. By that measure, the strict constructionists are clearly doing more of this. The three most liberal judges on the bench are SUPPORTING the elected members of congress.

[/ QUOTE ]

Ummmm...That is called a "Check and Balance" of the Three Branches of Government and it is a part of the Constitution. So what is the purpose of the Judicial Branch? Rubber-stamping the will of the majority represented by the Legislative and the Executive branches?

I think not.

"Legislating from the bench" is when the meanings of words are changed/expanded to suit the political winds of the times. Its the "living" and "dead" Constitutional debate. I like my Constitution dead thank you very much.

None the less. This is still one the worst definitions of "Judicial Activism". Because by it very definition, someone who votes in favor of every act of congress who be considered the best "impartial judge".

-or-

Lets say for some bizarre reason Bozo the Clown got appointed to the Supreme Court and everytime a case was before the court. He would pull out his "magic judical" die and roll it: If it came up 1 - 4, he would uphold the law; If it came up 5 or 6 he would vote to knock it down. Then by this set of criteria. He would be a non-"Activist Judge".

How asinine is that?!

-Gryph

[lehighguy]

I think Thomas addressed mills and military bases in his dissent. They were different somehow. However, that was when my professor told me to pick my head up and focus on finance class.

I disagree that the legislator should decide the meaning of "public use". If it is in the constitution then the supreme court is supposed to clarify its meaning. That's thier job.

[lehighguy]

I could give a lot fo examples, but we could start with say, the Patriot Act. I'm sure we can name others if we sit down and go through all of the cases the supreme court reviewed last term.

[lehighguy]

No one watches the watchers. I'm pretty sure the supreme court reports to no one.

As individuals though we can evaluate wether we would do the same in thier shoes. While I can't, for instance, change American foriegn policy (directly) I can have an opinion on wether or not certain actions are justified.

Edit:
Rather, I personally think the so called "originalist" principle is the best way to hand this. If a law violates the constitution, according to the original intent of the articles when they were written, then not striking down that law is unjustifiable. If the public wishes to change the constitutions meaning (the living constitution) then it should amend it through the political process.

[ QUOTE ]
I could give a lot fo examples, but we could start with say, the Patriot Act. I'm sure we can name others if we sit down and go through all of the cases the supreme court reviewed last term.

[/ QUOTE ]

That's one. Nicely done. Maybe if we work hard we can get all the way up to 10.

[andyfox]

Sure. MMMMMM nad I have debated this here before, but here's my take again.

James Madison rejected the idea that the original intent of those who framed the Constitution should be acepted as an authoritative guide to its meaning: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character." If the Framers had wanted their country and posterity to construe the Constitution in the light of their "original intent," they would have had a stenographer present to keep an official record of their deliberations, and they would have published it. Madison's "Notes of Debates in the Federal Convention" was not published until 1840.

The Framers who remained in national politics after ratification disagreed with each other on many issues covered in the Constitution: the removal power, the power to charter a corporation, the power to declare neutrality, the executive power, the power to enact excise and use taxes without apportioning them on population, the power of a treaty to obligate the House of Representatives, the power of judicial review, the power to deport aliens, the power to pass an act against seditious lible, the power of the federal courts to decide on federal common law grounds, the power to abolish judicial office of life tenure, to name a few.

There is not a shred of evidence existing that shows that the Framers meant, wanted, or expected future generations to construe the Constitution as they had, because they construed it differently from one another. The epic battles between Hamilton and Jefferson are a prime example. Jefferson considered his differences with the Federalists so profound that he regarded his victory over John Adams in 1800 as a Second American Revolution. Jefferson and Adams obviously had very different ideas about "original intent."

For the most part the Framers desigend the Constitution with the utmost diligence and attention to detail. In many places the Constitution is quite explicit. The Framers chose their words with craftsmanship. That is the reason that constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and clearly understandable. The occasional vagueness and ambiguities, the open-ended phrases that have been adjudicated, must be vague or ambiguous or open-ended deliberately, often as a compromise over competing visions.

Thus the imprecision of the text of the Constitution's litigated provisions makes "strict construction" or "originalism" ridiculous concepts. Ambiguity cannot be strictly construed and since the different framers had different intents, there is no one original intent. Edmund Randolph said that the Framers focused on "essential principles which ought to be accommodated to times and events."

I'll finish with quote from, of all people, Robert Bork:

"It is naive to suppose that the Court's present difficulties could be cured by appointing Justices determined to give the Constitution its 'true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court."

[MMMMMM]

Fine explanation, Andy, but I suspect thare are at least some instances where original intent can be divined.

Anyway, let's look beyond "original intent" for a moment.

What is wrong with reading the constitution according to what the words meant in the plain language of the time when it was written? In other words, we don't have to divine original intent; we only have to discern original meaning. We may not always be able to do this, but I'll wager that it's a sight easier than trying to divine original intent.

In other words, as John Cole once put it, all we would have to do is be good readers (though I'm not claiming he meant what he said;-)).

My own interpretation of "original intent" is that the framers wanted us to be good readers. Cyrus, please take note.

[andyfox]

As I indicated, large portions of the Constitution are clear and easy to understand. That is why those portions are not subject to judicial interpretation. But there are things that require review. For example, the provision requiring no "capitation, and other direct tax" unless apportioned among the states on the basis of population. An open-ended phrase like "other direct tax," in the face of the Constitutions overwhelming precision, must have been deliberate. Good reading will not define this phrase.

It is a matter of record, in fact, that the Anti-Federalists blasted the Constitution for precisely this lack of clarity in crucial respects. They feared that uncertainty in meaning would sap states' rights and civil rights. The "necessary and proper" clause was particularly troubling, Edmund Randolph stating during the ratification controversy that he objected to the clause because "the clause is ambiguous."

Here is what Madison said in Federalist 37, seeking to answer the ambiguity charged leveled at many of the Constitution's clauses:

"All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdiction, must have experienced the full effect of them all."

The Framers' compromises led to cloudy language; sometimes they could not compromise and deliberately left the phrasing of a proposition open-ended to avoid even greater problems by spelling out something better left only partially said.

One example: the exceptions clause of Article III. Does it mean that Congress may switch appellate jurisdiction to original jurisdiction, thereby adding to the Court's original jurisdiction, or does it mean that the original jurisdiction is fixed? (This was the argument between Marbury's counsel and Marshall.) If Congress may diminish the Court's appellate jurisdiction, how far may Congress go, and how can the Court exercise the jurisdiction specified in Article III as belonging to the judicial power of the United States?

I could cite numerous other examples of ambiguities and lack of clarity where one cannot discern "what the words meant in the plain language of the time when it was written." As well as others where the words do not mean what they say and therefore cannot be taken literally because they were not meant literally.

Originalism is a chimera.

[fluxrad]

They shall build a monument to you and set incense aflame in the hopes that you shall view them in a favorable light.

That was one hell of a post.

[lehighguy]

Perhaps in certain cases the constitution and original intent is ambigous enough to allow great leway in interpretation.

However, it seems that all to often in matters where original intent is clear the court has decided to ignore it (Kelo) in favor of whatever definition suits them.

[andyfox]

I think judges at all locations on the political spectrum want certain results and then tailor their arguments to justify those results. This includes the so-called originalists like Scalia and former judge Bork. But I'm not as sure that they ignore the clear original intent of the words because more often than is generally recognized the original intent is not clear.

I'm also pretty certain that the framers wanted it that way. That is, that they didn't want a sclerotic constitution where the words meant only what they meant in 1789, but rather, they indeed wanted a living constitution which would be adaptable to the times. I certainly see the dangers inherent in either approach.