Judicial Activism [Archive] - Two Plus Two Older Archives

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10-25-2005, 03:37 PM

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To me Judicial Activism is when the courts insert their own judgement as law over the legislative process. That is when judges go from interpreting law to making law. I think almost everyone agrees with this. Where there is disagreement is which decisions actually constitute this and which do not.

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Just to echo Elliot somewhat here, but:

It's rather hard for me to resist the inference that the alleged jurisprudential contrast between strict construction and legislation from the bench is nothing but a mask for illicit policy concerns. Whether an opinion is called strict construction or legislation from the bench seems to depend solely on whether the commentator likes the outcome.

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I think there is a good chance you and the many others who have stated this are correct here but do you have any actual examples a supreme court decision where there was significant claims of judicial activism and the majority was the conservative justices (scalia, thomas, rhenquist).

For example I think you could argue striking down CA Medical Marijuana was judicial activism but unless im wrong the judges who are often cited as being out the "judicial mainstream" sided with the citizens of CA. Also, and again I don't follow this as closely as others so I may be wrong" but wasn't this also the case in the emminent domain case.

It's not hard for me to believe that there are counter examples but I would like to see them.

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10-25-2005, 03:38 PM

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isn't this done all the time in common law areas? i.e. a court gives a test or a set of factors to say when some concept applies?

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I don't know enough to give a good answer, hopefully someone who does will chime in.

lehighguy

10-25-2005, 04:05 PM

Conservatives advocate a certain set of judicial intepretation methods. It is adherance to this method rather then specific case outcomes that matters. Wether a judge strikes down a law is not important, the legal reasoning behind such an action is important.

Put another way, not striking down a law that would be considered unconstitional using the afformentioned methods would be activism, even though it is an activism based on passivity and deference.

slickpoppa

10-25-2005, 04:11 PM

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isn't this done all the time in common law areas? i.e. a court gives a test or a set of factors to say when some concept applies?

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I don't know enough to give a good answer, hopefully someone who does will chime in.

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Yes. Most of tort and contract law was created by judges. Cries of judicial activism mostly arise when courts strike down laws made by the legislature.

etgryphon

10-25-2005, 04:22 PM

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If the courts strike down a rule because it "ought to" violate the Constituion, but does not, then it is Judicial Activism.

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When has this ever happened?

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Roe V. Wade....

It is an extention of the "Right to Privacy" which is an extention of the interpretive meaning of the 4th, 5th, 9th and Tenth amendments.

It is the very definition of this.

-Gryph

etgryphon

10-25-2005, 04:35 PM

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To me Judicial Activism is when the courts insert their own judgement as law over the legislative process. That is when judges go from interpreting law to making law. I think almost everyone agrees with this. Where there is disagreement is which decisions actually constitute this and which do not.

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A big Judical Activist bit is the when they come up with Test like the "Compeling Interest Test" or CIT. The court regularly oversteps its bounds by making a sweeping statement to define a "test" so the they won't get cases in front of them. It is a preemptive strike and how they "legislate" from the bench. They force laws and interpretations into existence.

What people don't know is that the Court can rule in a case and make it none binding. Kind of say, "Well, the Constitution\federal law is too vague in this area. Congress go back and fix it and make it clearer" Instead they try to clear things up or expand the interpretation to include new things.

Originalist or Contructionist is the safest judicial philosophy because of how slow it is and provide a clear path for changes to the law and Constitution. The problem with it is that it is too slow for most americans today who live in this high speed society.

It is a very dangerous and slippery slope to use another judicial philosophy even though it might be faster. Then you run the risk of unintended changes to the law. Like the Medical Pot case(bad decision). Clearly the State and the people have the right to make decisions about what goes on in the states. The Supreme Court think otherwise and that foundation was laid by the Civil Rights actions of the 60s (morally correct but judicially suspect).

-Gryph

DVaut1

10-25-2005, 04:50 PM

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I think there is a good chance you and the many others who have stated this are correct here but do you have any actual examples a supreme court decision where there was significant claims of judicial activism and the majority was the conservative justices (scalia, thomas, rhenquist).

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In fact, yes:

Boy Scout v Dale (http://straylight.law.cornell.edu/supct/html/99-699.ZS.html)

- Justice Rehnquist (writing for majority) rules that New Jersey's public accomodation law violates the Boy Scouts' First Amendment right of expressive association:

 "This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does." 

Now I've read the First Amendment (http://caselaw.lp.findlaw.com/data/constitution/amendment01/) up and down, and no matter how many tims I search, nowhere do I see the right to expressive association:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If you can find it, welcome to the world of judicial activism; interpreting laws (and sometimes striking them down) is how you play the game when it comes to jurisprudence. And I can promise you, the conservative justices are playing the same game as those who get branded 'judicial actvists' by the right.

If it wasn't apparent already, 'judicial activism' is just the right-wing code-word talking point for 'will uphold abortion and gay marriage'. Nothing more, nothing less.

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More:

United States v. Morrison (http://straylight.law.cornell.edu/supct/html/99-5.ZS.html)

- invalidated parts of the Violence Against Women Act (Rehnquist writes for the majority, joined by Scalia and Thomas)

Printz v. United States (http://straylight.law.cornell.edu/supct/html/95-1478.ZS.html)

- invalidated the Brady Gun Bill (Scalia writes for the majority, joined by CJ Rehnquist and Thomas)

United State v. Lopez (http://straylight.law.cornell.edu/supct/html/93-1260.ZO.html)

- invalidated the Gun Free School Zones Act (Rehnquist writes for the majority, joined by Scalia and Thomas)

Alabama v. Garrett (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/531/356.html)

- invalidated parts of the ADA (Rehnquist writes for the majority, joined by Scalia and Thomas)

Kimel v. Florida Board of Regents (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-791)

- invalidated parts of the Age and Discrimination in Employment Act (O'Connor writes for the majority and is joined by Rehnquist, Thomas, and Scalia)

Seminole Tribe v. Florida (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10198)

- invalidated the Indian Gaming Regulatory Act (Rehnquist writes for the majority, joined by Scalia and Thomas)

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For example I think you could argue striking down CA Medical Marijuana was judicial activism but unless im wrong the judges who are often cited as being out the "judicial mainstream" sided with the citizens of CA. Also, and again I don't follow this as closely as others so I may be wrong" but wasn't this also the case in the emminent domain case.

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Again, this just seems to be a similar effect to what I'm describing above: don't like the way a judge ruled? Well, then, they're out of the mainstream.

Or more bluntly, the right-wing echo chamber strikes again.

slickpoppa

10-25-2005, 04:51 PM

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What people don't know is that the Court can rule in a case and make it none binding.

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People don't know that because it is not true. Article III of the Constitution prohibits the judiciary from making non-binding "advisory opinions."

link (http://caselaw.lp.findlaw.com/data/constitution/article03/09.html#3)

DVaut1

10-25-2005, 04:53 PM

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If the courts strike down a rule because it "ought to" violate the Constituion, but does not, then it is Judicial Activism.

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When has this ever happened?

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Roe V. Wade....

It is an extention of the "Right to Privacy" which is an extention of the interpretive meaning of the 4th, 5th, 9th and Tenth amendments.

It is the very definition of this.

-Gryph

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'Interpreting' is what constitutional judges (conservative and not) do! SCOTUS didn't rule the right to privacy 'ought' to be in the Constitution - they ruled that it is in the Constitution. I know conservatives don't like it, but that doesn't make it 'activism', anymore than Rehnquist finding a right to 'expressive association' is activism.

etgryphon

10-25-2005, 04:56 PM

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What people don't know is that the Court can rule in a case and make it none binding.

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People don't know that because it is not true. Article III of the Constitution prohibits the judiciary from making non-binding "advisory opinions."

link (http://caselaw.lp.findlaw.com/data/constitution/article03/09.html#3)

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You are misunderstanding me. The Court can rule a way on a case and NOT make a legacy statement. They can rule that in this PARTICULAR case not make a sweeping argument that is supposed to adress all forms and versions of the present case. They can also make rulings that include an admonision to Congress to clarify the law.

-Gryph

etgryphon

10-25-2005, 05:00 PM

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More:

United States v. Morrison (http://straylight.law.cornell.edu/supct/html/99-5.ZS.html)

- invalidated parts of the Violence Against Women Act (Rehnquist writes for the majority)

Printz v. United States (http://straylight.law.cornell.edu/supct/html/95-1478.ZS.html)

- invalidated the Brady Gun Bill (Scalia writes for the majority)

United State v. Lopez (http://straylight.law.cornell.edu/supct/html/93-1260.ZO.html)

- invalidated the Gun Free School Zones Act (Rehnquist writes for the majority)

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All these were overruled because of Federal government lacked the proper jurisdiction through the Commerce Clause. I don't know about your other examples, but these ruling where exactly what the Supreme Court was designed to do.

-Gryph

DVaut1

10-25-2005, 05:03 PM

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but these ruling where exactly what the Supreme Court was designed to do.

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Yup. You got it. Couldn't agree more.

Although I disagree that the Commerce Clause was very clear in Printz. (http://straylight.law.cornell.edu/supct/html/95-1478.ZS.html)

"(a) Because there is no constitutional text speaking to the precise question whether congressional action compelling state officers to execute federal laws is unconstitutional, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the Constitution's structure, and in this Court's jurisprudence."

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Nor do I agree that the Violence Against Women Act ("[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender.") clearly violated the Commerce Clause (http://en.wikipedia.org/wiki/Commerce_Clause) ("To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.") To come to that conclusion, you have to do some interpreting.

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Nor do I agree that the Gun Free School Zones Act of 1990 ("for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone") clearly violated the Commerce Clause. Again, for that - you'll have to do some interpreting.

That's the game, and everyone's playing.

etgryphon

10-25-2005, 05:05 PM

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If the courts strike down a rule because it "ought to" violate the Constituion, but does not, then it is Judicial Activism.

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When has this ever happened?

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Roe V. Wade....

It is an extention of the "Right to Privacy" which is an extention of the interpretive meaning of the 4th, 5th, 9th and Tenth amendments.

It is the very definition of this.

-Gryph

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'Interpreting' is what constitutional judges (conservative and not) do! SCOTUS didn't rule the right to privacy 'ought' to be in the Constitution - they ruled that it is in the Constitution. I know conservatives don't like it, but that doesn't make it 'activism', anymore than Rehnquist finding a right to 'expressive association' is activism.

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You don't think that it is suspicious that this "Right" supposedly clearly evident in the Constitution did not exist for nearly 200 years?

It is very clearly judicial activism. They thought it "ought" to be in the Constituiton so they invented it.

-Gryph

DVaut1

10-25-2005, 05:20 PM

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You don't think that it is suspicious that this "Right" supposedly clearly evident in the Constitution did not exist for nearly 200 years?

It is very clearly judicial activism. They thought it "ought" to be in the Constituiton so they invented it.

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The Court didn't claim to 'invent' nor 'find' the right to privacy (which extends to the right to have an abortion). Nor did they claim 'the right isn't there, but it ought to be - so now it exists'.

They argued that right has always been there (so says Justice Douglas in Griswold v. Connecticut, (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479) which formed the basis of Roe ):

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

I know, I know - conservatives don't like the words penumbra and emanate. They sound kind of funny, so, I understand. But that isn't SCOTUS claiming "Hey, look at this funny [censored] we just made up" - despite whatever nonsense you might hear from the right. It's the legitimate business of jurisprudence; something everyone on all sides is engaged in.

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Or put another way: the right to an Air Force isn't in the Constitution, nor did it exist in this country's first 150 years.

You can survey Article I of the Constitution for yourself, if you don't believe me:

Article I, Secion VIII: (http://www.house.gov/Constitution/Constitution.html)

"Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 

I'm willing to wager even Robert Bork would uphold the Constitutional legitimacy of the Air Force. How could he do such a thing? By interpreting, of course. You say to-mat-to, I say to-mat-ta. You say 'judicial activism', I say 'legitimate jurisprudence'.

crash

10-25-2005, 05:23 PM

yeah, but if you're going to say Roe was an example of this, you arguably can say Brown v. Board was an example too. Now, you could bite the bullet and say "Brown was wrong, the country should have waited until Congress passed a law integrating the schools."

That's a tough pill to swallow, though, because it might have taken quite a while.

crash

10-25-2005, 05:38 PM

"A big Judical Activist bit is the when they come up with Test like the "Compeling Interest Test" or CIT. The court regularly oversteps its bounds by making a sweeping statement to define a "test" so the they won't get cases in front of them. It is a preemptive strike and how they "legislate" from the bench. They force laws and interpretations into existence."

yeah, but courts do this all the time in some areas without controversy (see slickpoppa above). You have to formulate tests: the only other options are:
1. asking the legislature every time to add more detailed laws on the subject.
2. deciding each case as narrowly as possible.

Neither of those looks practical.

DVaut1

10-25-2005, 05:43 PM

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1. asking the legislature every time to add more detailed laws on the subject.

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And especially since legislatures are often very deliberate in writing some laws as vaguely as possible [knowing (and in some cases, hoping) any conflicts will be ironed out in court], put another check in the "interpreting is the judiciary's legitimate business" box.

Colonel Kataffy

10-25-2005, 05:57 PM

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not that wikipedia is the gospel

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you thought wrong

lehighguy

10-25-2005, 06:22 PM

The arguement as presented in Brown was that the court got Plessy vs Furgeson wrong. That seperate but equal was inherintely unequal. Thus, it argued within current constitional framework rather then apply new law.

I've never read Brown in full though, so I'm only going on summaries and analysis I've seen.

crash

10-25-2005, 06:30 PM

I haven't read it in a while either, but the point is:

if you're going to criticize Roe for inventing a right, then what is the right violated by separate but unequal schools? It has to be an "invented" right.

neither of the rights involved is in the Const. explicitly.

lehighguy

10-25-2005, 07:36 PM

You have a right to equal treatment under the equal protection clause of the constitution. In other words, in Brown they argued that seperate schools didn't meet the already agreed upon amendment ("seperate is inherintly unequal"), not that they wanted to change the meaning of the amendment itself.

Once again, I'm going on second hand info here.

elwoodblues

10-25-2005, 07:57 PM

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Striking down certain laws are part of the reason for having a judiciary

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Some would argue that this the creating the ability to strike down laws in Marbury v. Madison is one of the earliest examples of judicial activism.

lehighguy

10-25-2005, 08:55 PM

Unfamilair with case, can you give a brief summary.

elwoodblues

10-25-2005, 11:07 PM

A highly political 1803 case in which the Supreme court asserted a power to declare laws unconstitutional (a power found nowhere in the text of the constitution itself.)

A "borrowed" summary:

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Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights

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hetron

10-25-2005, 11:27 PM

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I thought judicial activism meant striking down laws the legislature has passed. I was under the impression that Thomas et. al. were anti-judicial activism. How to explain this:

"Indeed, according to an analysis by Paul Gewirtz, a professor at Yale Law School, and his student Chad Golder, of Supreme Court decisions between 1994 and 2005 addressing the constitutionality of sixty-four congressional provisions, Breyer voted to strike down laws twenty-eight per cent of the time—less often than any other Justice. Clarence Thomas voted to overrule Congress sixty-six per cent of the time, more than any other Justice."

link (http://www.newyorker.com/fact/content/articles/051031fa_fact)

How to explain? Maybe it only counts as judicial activism if you strike down a law in a certain area? e.g. economic

(note: I'm not trying to be snotty)

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Very specifically
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Article I Section

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

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Basically, the way I look at it, any federal law that doesn't deal specifically with those powers outlined in that section and whatever other amendments must fall under the "general welfare of the US" clause up top. Conservatives can make a good argument that this clause has been abused to the point where we have federal laws on things the founding fathers never would have dreamed of, thus likely explaining the amount of cogressional laws likely struck down by conservative judges.

natedogg

10-25-2005, 11:40 PM

Judicial activism is just a word used by people who don't like a decision the Court made.

That's all it is.

natedogg

BCPVP

10-26-2005, 12:11 AM

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Unfamilair with case, can you give a brief summary.

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Really? This is where the term "judicial review" came from. You must have heard of it in a civics-type class...

natedogg

10-26-2005, 12:58 AM

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You don't think that it is suspicious that this "Right" supposedly clearly evident in the Constitution did not exist for nearly 200 years?

It is very clearly judicial activism. They thought it "ought" to be in the Constituiton so they invented it.

[/ QUOTE ]

The Court didn't claim to 'invent' nor 'find' the right to privacy (which extends to the right to have an abortion). Nor did they claim 'the right isn't there, but it ought to be - so now it exists'.

They argued that right has always been there (so says Justice Douglas in Griswold v. Connecticut, (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479) which formed the basis of Roe ):

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

I know, I know - conservatives don't like the words penumbra and emanate. They sound kind of funny, so, I understand. But that isn't SCOTUS claiming "Hey, look at this funny [censored] we just made up" - despite whatever nonsense you might hear from the right. It's the legitimate business of jurisprudence; something everyone on all sides is engaged in.

-----------------------

Or put another way: the right to an Air Force isn't in the Constitution, nor did it exist in this country's first 150 years.

You can survey Article I of the Constitution for yourself, if you don't believe me:

Article I, Secion VIII: (http://www.house.gov/Constitution/Constitution.html)

"Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 

I'm willing to wager even Robert Bork would uphold the Constitutional legitimacy of the Air Force. How could he do such a thing? By interpreting, of course. You say to-mat-to, I say to-mat-ta. You say 'judicial activism', I say 'legitimate jurisprudence'.

[/ QUOTE ]

This won't happen often, but I couldn't agree more with Dvault.

natedogg

MMMMMM

10-26-2005, 01:37 AM

[ QUOTE ]
Judicial activism is just a word used by people who don't like a decision the Court made.

That's all it is.

[/ QUOTE ]

Granted in many cases that may be, but I don't see how a blanket statement like that can be supported. Here's why, starting with an example:

What if a judge decides to rule otherwise than what the law would have him rule, simply because it conflicts with his personal notions of what "ought" to be, his moral code--that is, he secretly disagrees with the law and sees fit to find a way to try to impose his own personal view of right and wrong? Surely this has happened at least on *some* occasions, no?

The next-removed step, which would still be tainted by judicial activism, would be when judges deliberately "shade" things a bit to make them more in line with their personal views, rather than ruling precisely as they would if they were exactly following the law as they understand it. God-knows-how-many-times in the history of American jurisprudence this might have happened, right?

My definition of judicial activism is the following: judges attempting to fully or partially impose their personal political views or moral code, when instead they are supposed to be ruling only on the law.

Hopefully that doesn't happen very often, but I just can't believe it never happens.

I'm not talking about legitimate areas where judges are given some discretionary leeway; but rather, perhaps, the occasions when judges do something roughly on a parallel with a citizen using the theory of jury nullification when serving as a juror (and by the way, I do believe in jury nullification, but I don't think SCOTUS ruling on whether somethig is or is not Constitutional is the place to apply conscience if it conflicts with the law. I'm not talking about legitimately murky areas of definition, either, but rather the willful attempt of a judge to push things through so as to conform to his own personal beliefs, when he is instead solely tasked with determing Conmstitutional law).

However, I would not object to seeing conscience applied, for example, in giving a more lenient sentence to a convicted criminal in a lesser court, if the judge felt more leniency was merited than the guidelines specifically indicate. I'm not arguing for utter strictness in all forms of judgeship (also, I do think our penal code is too draconian, and that many receive overly harsh sentences, sometimes even for things which shouldn't be considered crimes at all). In matters of Constitutional law, though, I think that the Constitution is far too important to be subjected to the whims of any judge's personal views or moral code.

Granted, unconscious bias may at times play a role, but it would be pure judicial activism if, for example, a SCOTUS judge in the Roe vs. Wade case were to think, and follow through upon, the following: "I believe abortion should be legal, but from the strict standpoint of Constitutional Law the states themselves *do* have the right to decide, of that much I'm sure--but I'll try to find a way to obfuscate or redefine things and get around that somehow, since I really do heartily believe that abortion can be a good and necessary thing, and one which that should be available to all, everywhere in the USA."

Now, I'm NOT claiming that that's what some judges who made the Roe vs. Wade decision were actually thinking and doing, but IF they were, then that *would* be a clear example of judicial activism.

natedogg

10-26-2005, 01:43 AM

Again, all you're doing is elaborately describing a very simple situation: the judge views the constitution more expansively/conservatively than you'd like. He sees abortion in there, you don't. That's not activism. That's a disagreement.

I would say that the consitution explicitly guarantees your right to an abortion, polygamy, and freedom to use any drug you like. Where? Look no further than the 9th amendment.

If I'm on the court and I rule that way, it's not activism.
Man how great would that be if I was on the Supreme Court?

PS: Please god let Miers withdraw so Bush can nominate Janice Rogers Brown....

natedogg

MMMMMM

10-26-2005, 02:04 AM

[ QUOTE ]
Again, all you're doing is elaborately describing a very simple situation: the judge views the constitution more expansively/conservatively than you'd like. He sees abortion in there, you don't.

[/ QUOTE ]

No, I'm describing a hypothetical situation where the judge knowingly goes against *his own* view of the law, in order to promote his own personal moral or personal political vision. (I twice edited that post of mine for clarity just *before* reading this response of yours, so maybe that will help).

[ QUOTE ]
That's not activism. That's a disagreement.

[/ QUOTE ]

As above.

[ QUOTE ]
I would say that the consitution explicitly guarantees your right to an abortion, polygamy, and freedom to use any drug you like. Where? Look no further than the 9th amendment.

If I'm on the court and I rule that way, it's not activism.

[/ QUOTE ]

Correct, BUT if you believe as you state above, yet instead find a means to rule the OTHER way, because you place your own values above the Constitution, then that's judicial activism. If you don't do it blatantly, but rather just deliberately shade things a bit in that direction, that's judicial activism too, although in a lesser regard.

[ QUOTE ]
Man how great would that be if I was on the Supreme Court?

[/ QUOTE ]

I'll definitely recommend you if Miers doesn't make it through.

[ QUOTE ]
PS: Please god let Miers withdraw so Bush can nominate Janice Rogers Brown....[/qute]

Haven't read her work, but I'd guess she's good if she adheres to an originalist/constructionist/original-intent philosophy.

natedogg

10-26-2005, 03:02 AM

[ QUOTE ]

No, I'm describing a hypothetical situation where the judge knowingly goes against *his own* view of the law, in order to promote his own personal moral or personal political vision.

[/ QUOTE ]

How would we ever know that this has occurred? And how do separate the two?

It's a non-operative standard basically. It doesn't mean anything, because there's no way to ever identify it.

And besides, it doesn't matter because the outcome is the same.

It doesn't matter. Think of it this way. Are you going to feel better because the judge was not unconsciously swayed by his own convictions to fudge the line on states rights?

These are human beings. Not computer programs. Of COURSE their personal convictions sway their rulings.

Furthermore I doubt your hypothetical has ever actually occurred. The power of rationalization in humans is a mighty force indeed. The judges always think they are ruling legitimately. And in essence, they are, becuase it is their *job* to draw the lines. Whatever lines they draw, are in fact the legitimate lines. It's a wierd tautological situation but there it is.

In fact, it is the orginalists who are resting their views on "shoulds" and "oughts".

natedogg

Cyrus

10-26-2005, 03:22 AM

I have a flight to catch so I'll be brief : The strongest practitioners of "judicial activism" in the last decades have been those from the Right, in the United States.

And it's not even close.

DVaut1

10-26-2005, 05:21 AM

[ QUOTE ]
No, I'm describing a hypothetical situation where the judge knowingly goes against *his own* view of the law, in order to promote his own personal moral or personal political vision.

[/ QUOTE ]

Even if this happens, I think it requires an awful lot of mind-reading and assigned agendas that are completely unknowable - how can you know Justice Blackmun 'secretly' wanted abortion to be legal, but 'truly knew' it wasn't the law when he ruled in Roe?

Similarly, how can you know Justice Rehnquist is some raging homophobe, who just wanted to limit the rights of gays when ruled against them in Boy Scouts v. Dale, when he defended the Boy Scouts' right to expel gay leaders, under the notion that New Jersey law violated their right to 'expressive association' (which I still haven't found in the text of the First Amendment). In fact, I've heard numerous people on the left claim Scalia is a homophobe for his dissent in Lawrence v. Texas (as he claimed there is no constitutional right to sodomy).

Unfortunately for those on the left who would like to take shots at Scalia, there's no way to know that (nor is there a way to know if Justice Rehnquist hates gay, or if Justice Blackmun wants babies dead); and since both sides are (legitimately) engaged in the business of taking a document (the Constitution) that was purposely written vaguely, and trying to discern its application on a wide variety of issues - we're often left with nothing but interpretations.

If the standard you describe above is what constitutes 'judicial activism', it seems to be a rather innocuous charge - because there's nothing to prevent me from saying all sides involved are judicial activists; if there's some way to know former CJ Rehnquist isn't some raging homephobe who manipulated his rulings to fit his own personal whims (as there is certainly no clear text which defines a right to 'expressive association' - at least no more than we find the right to privacy in the Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments) – then I’d like to know what the standard for is for discerning a judge’s subjective whims, other than standards which appeal to our own subjectivisms.

By that, I mean: Don’t like Roe? Judicial activism run amok by those secretly looking to advance some devious, feminist agenda. Don’t like Scalia’s dissent in Lawrence, or Rehnquist’s ruling in Boy Scouts v Dale? Well, they’re just abject homophobes, perverting the law to subjugate and overpower gays because of their secret, fascist agenda.

I suppose we can try to play such a game all day, but it seems rather pointless to me.

And like natedogg said - you probably won't see me agreeing with natedogg much, but I think he's dead on as to why I think it’s a pointless game to play:

[ QUOTE ]
The judges always think they are ruling legitimately. And in essence, they are, becuase it is their *job* to draw the lines. Whatever lines they draw, are in fact the legitimate lines. It's a wierd tautological situation but there it is.

[/ QUOTE ]

ACPlayer

10-26-2005, 07:38 AM

[ QUOTE ]
The judges always think they are ruling legitimately. And in essence, they are, becuase it is their *job* to draw the lines. Whatever lines they draw, are in fact the legitimate lines. It's a wierd tautological situation but there it is.

[/ QUOTE ]

[ QUOTE ]
Man how great would that be if I was on the Supreme Court?

[/ QUOTE ]

Perfect.

vulturesrow

10-26-2005, 08:58 AM

<blockquote>En respuesta a:<hr />
I think it requires an awful lot of mind-reading

[/ QUOTE ]

Weird, this is the exact thought that popped into my head when I read MMMMMM's post. To be honest, Ive barely skimmed this thread, because any thinking person can see that the words "judicial activism" are a scare tactic and nothing more. Im no legal scholar, although I do enjoy reading the decisions from SCOTUs, but I do know that we have for the most part been blessed with very competent and very smart legal minds on SCOTUS, regardless of how you feel about their personal politics. I also take it as axiomatic that people of their intelligence and experience are making honest attempts to make what is the fair and legally supportable decision. We really cant ask for much more than that.

etgryphon

10-26-2005, 09:38 AM

[ QUOTE ]
[ QUOTE ]
You don't think that it is suspicious that this "Right" supposedly clearly evident in the Constitution did not exist for nearly 200 years?

It is very clearly judicial activism. They thought it "ought" to be in the Constituiton so they invented it.

[/ QUOTE ]

The Court didn't claim to 'invent' nor 'find' the right to privacy (which extends to the right to have an abortion). Nor did they claim 'the right isn't there, but it ought to be - so now it exists'.

They argued that right has always been there (so says Justice Douglas in Griswold v. Connecticut, (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479) which formed the basis of Roe ):

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

I know, I know - conservatives don't like the words penumbra and emanate. They sound kind of funny, so, I understand. But that isn't SCOTUS claiming "Hey, look at this funny [censored] we just made up" - despite whatever nonsense you might hear from the right. It's the legitimate business of jurisprudence; something everyone on all sides is engaged in.

-----------------------

Or put another way: the right to an Air Force isn't in the Constitution, nor did it exist in this country's first 150 years.

You can survey Article I of the Constitution for yourself, if you don't believe me:

Article I, Secion VIII: (http://www.house.gov/Constitution/Constitution.html)

"Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 

I'm willing to wager even Robert Bork would uphold the Constitutional legitimacy of the Air Force. How could he do such a thing? By interpreting, of course. You say to-mat-to, I say to-mat-ta. You say 'judicial activism', I say 'legitimate jurisprudence'.

[/ QUOTE ]

I don't disagree with the notion of a "Right to Privacy" and I think that the founder had something like that in mind as well. My whole problem is that it is a tricky business to start reinterpreting the language to expand the right of something. The "Right to an abortion" is an extension of the right to privacy which is an extention of several other clauses. Now, With the Griswold case it was a "good" move but it opens the door for reinterpreting to include the "Right to an Abortion". I think there should be a right to privacy and I think, just like Roberts believes, that there are "general" provisions that make up the right to privacy. I do not see those general provision to include "The Right to an Abortion". It was the time that they believed that it ought to apply so they invented.

I don't understand your non sequitur on the Air Force. Air Force is just an equipmental division from the Army. You can just reorg the Air Force under the army and it would not be in violation of the Constitution. So I don't understand the bearing.

-Gryph

etgryphon

10-26-2005, 09:46 AM

[ QUOTE ]
You have a right to equal treatment under the equal protection clause of the constitution. In other words, in Brown they argued that seperate schools didn't meet the already agreed upon amendment ("seperate is inherintly unequal"), not that they wanted to change the meaning of the amendment itself.

Once again, I'm going on second hand info here.

[/ QUOTE ]

No that is how I understand it. No one can argue that using the same resources(schools) is unequal. It overturned an extra-Constitutional provision of "seperate but equal" which in practice was unequal.

The tricky part was the courts mandating the busing to force integration. That is the only slippery slope. Now, they are legislating a solution.

-Gryph

MMMMMM

10-26-2005, 10:19 AM

[ QUOTE ]
[ QUOTE ]
I think it requires an awful lot of mind-reading

[/ QUOTE ]

Weird, this is the exact thought that popped into my head when I read MMMMMM's post.

[/ QUOTE ]

I agree that it would require a lot of mind-reading to identify specific instances of occurrence. That however is a far cry from the claim that it doesn't exist at all except in the eye of the beholder.

DVaut1

10-26-2005, 10:26 AM

[ QUOTE ]
I don't disagree with the notion of a "Right to Privacy" and I think that the founder had something like that in mind as well.

[/ QUOTE ]

You think the Founders had something like that in mind? Where did you get that idea? Not once does the word privacy appear in the Constitution.

I'm not trying to be confrontational - I'm trying to demonstrate that much of what constitutes jurisprudence is intepretation.

[ QUOTE ]
My whole problem is that it is a tricky business to start reinterpreting the language to expand the right of something.

[/ QUOTE ]

I agree it's certainly a tricky business; all the more reason to give a high level of concern the quality of the judiciary, particularly SCOTUS.

'Reinterpreting' is often the business of the court; as someone mentioned, Brown v. Board of Education is a good example of how and why courts are often (and ought to be) in the business of 'reinterpreting' from time to time. That's their duty, even though they attempt to remain faithful in observing stare decisis and jurisprudence constante whenever possible (although it should also be noted that many originalists, including Scalia, are strong critics of stare decisis; and it should also be mentioned neither Griswold nor Roe constituted a 'reinterpretation' of the Constitution - critics of Griswold and Roe argue that it removed what ought to be the legislature's legitimate jurisdiction; in other words, critics of Griswold and Roe constituted a wrong-headed 'interpretation', not an illegitimate 'reinterpretation'; this may seem like a small difference, but it's not - as what I'm trying to demonstrate here is that jurisprudence is the business of interpretation, and it's where our differences lie; the right attempts to paint the picture that conservative justices follow 'the letter of the law' while liberal justices 'invent, legislate from the bench, and are judicially active'; let's be honest instead: Everyone's interpreting - and the right disagrees with some of SCOTUS's past interpretations, and would rather have those interpretations replaced with their own, more-agreeable-to-their-point-of-view interpretations. Fair enough. But that's the game, and it's disingenuous to claim the right isn't playing too).

In other words, if you agree with Scalia, than you ought to favor a judicial philosophy that embraces 'reinterpretation', as this is the only way Roe could ever be overturned - certainly you don't find 'reinterpretation' to be so abhorrant when it comes to overturning Roe, correct? I think you'd be more than happy to reinterpret Roe. Shout me down if I'm wrong.

[ QUOTE ]
The "Right to an abortion" is an extension of the right to privacy which is an extention of several other clauses. Now, With the Griswold case it was a "good" move but it opens the door for reinterpreting to include the "Right to an Abortion". I think there should be a right to privacy and I think, just like Roberts believes, that there are "general" provisions that make up the right to privacy. I do not see those general provision to include "The Right to an Abortion". It was the time that they believed that it ought to apply so they invented.

[/ QUOTE ]

Well, SCOTUS did see the right to privacy extending to the right to have an abortion in Roe. Just because you and Chief Justice Roberts disagree (although I don't think it's at all clear what Roberts believes) doesn't mean the Burger Court 'invented' the right; again, what stops me from claiming Justice Rehnquist 'invented' a right to expressive association? It's nowhere explicitly in the Constitution.

'Inventing laws', 'judicial activism', 'legislating from the bench' are all to subjective judgments that are = 'I don't like the outcome'.

[ QUOTE ]
I don't understand your non sequitur on the Air Force. Air Force is just an equipmental division from the Army. You can just reorg the Air Force under the army and it would not be in violation of the Constitution. So I don't understand the bearing.

[/ QUOTE ]

1) The Air Force is part of the United States Armed Forces; it's not an 'equipmental divsion of the Army', which is a separate but equal branch of the Armed Forces - unless I'm severly confused about our military.
2) Surely, the United States could reorganize the Armed Forces so that it fully complies with the explicit wording of the Constitution; but clearly we have no interest in that, as most rational people can interpret the Constitution and say: while it doesn't explicitly grant the right to create the Air Force (wholly separate from the Army and the Navy), we can judge that the government has such a power, and has it legitimately. The only reason no one challenges such an interpretation is because it's relatively benign and not controversial - everyone agrees with it.