Judicial Activism

[DVaut1]

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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

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

<font color="blue"> "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." </font>

Now I've read the First Amendment up and down, and no matter how many tims I search, nowhere do I see the right to expressive association:

<font color="blue">"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."</font>

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

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

Printz v. United States

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

United State v. Lopez

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

Alabama v. Garrett

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

Kimel v. Florida Board of Regents

- 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

- 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]

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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

[DVaut1]

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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]

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

[/ QUOTE ]

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

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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]

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More:

United States v. Morrison

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

Printz v. United States

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

United State v. Lopez

- 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]

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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.

"(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 ("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]

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[ QUOTE ]
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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.

[/ 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

[/ QUOTE ]

'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]

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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, 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:

<font color="blue">"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." </font>


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]

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]

"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.