Judicial Activism

[TomCollins]

If the courts strike down a rule because it violates the Constitution, this is not Judicial Activism.


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

[DVaut1]

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

[/ QUOTE ]

When has this ever happened?

[BCPVP]

[ QUOTE ]
The latter sounds like what is commonly meant by "legislating from the bench", no?

[/ QUOTE ]
What the Florida Supreme Court tried to do in 2000 would be an example of "legislating from the bench".

But as others have said, "judicial activism" is usually applied to decisions the user doesn't agree with. Striking down certain laws are part of the reason for having a judiciary.

[crash]

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?

[[censored]]

[ QUOTE ]
[ QUOTE ]
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.

[/ QUOTE ]

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.

[/ QUOTE ]

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.

[[censored]]

[ QUOTE ]
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?

[/ QUOTE ]

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

[lehighguy]

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]

[ QUOTE ]
[ QUOTE ]
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?

[/ QUOTE ]

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

[/ QUOTE ]

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]

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

[/ QUOTE ]

When has this ever happened?

[/ QUOTE ]

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]

[ QUOTE ]
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.

[/ QUOTE ]

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