Judicial Activism

[DVaut1]

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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]

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not that wikipedia is the gospel

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you thought wrong

[lehighguy]

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]

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]

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]

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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]

Unfamilair with case, can you give a brief summary.

[elwoodblues]

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]

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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

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]

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

That's all it is.

natedogg