Judicial Activism

[BCPVP]

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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]

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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'.

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

natedogg

[MMMMMM]

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

That's all it is.

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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]

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]

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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.

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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).

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That's not activism. That's a disagreement.

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As above.

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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.

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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.

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

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


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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]

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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.

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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]

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]

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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.

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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:

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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.

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[ACPlayer]

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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.


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


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Perfect.

[vulturesrow]

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I think it requires an awful lot of mind-reading

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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.