Judicial Activism

[crash]

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)

[BCPVP]

[ QUOTE ]
I thought judicial activism meant striking down laws the legislature has passed.

[/ QUOTE ]
You thought wrong.

[ QUOTE ]
I thought judicial activism meant striking down laws the legislature has passed.

[/ QUOTE ]

"Judicial Activism" in today's context means only "a decision I disagree with".

[crash]

well, I know one of the things that gets conservatives upset is when a judge "invents" a right that's not in the Const.: privacy, or whatever. I thought this was what was meant by "legislating from the bench." But striking down a law passed by the legislature also has activist undertones, no?

[BCPVP]

[ QUOTE ]
I thought this was what was meant by "legislating from the bench."

[/ QUOTE ]
Again, you thought wrong.

[ QUOTE ]
But striking down a law passed by the legislature also has activist undertones, no?

[/ QUOTE ]
It depends.

[ QUOTE ]
[ QUOTE ]
I thought judicial activism meant striking down laws the legislature has passed.

[/ QUOTE ]

"Judicial Activism" in today's context means only "a decision I disagree with".

[/ QUOTE ]

priceless

[crash]

not that wikipedia is the gospel, but:

A concise description of judicial activity which most would agree constitutes "judicial activism" is that described by Justice Byron White's dissent in Doe v. Bolton (it is of course arguable whether White here accurately describes what occurred in Doe):

"I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right...and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state...statutes."


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

[AngryCola]

[ QUOTE ]
"Judicial Activism" in today's context means only "a decision I disagree with".

[/ QUOTE ]

[[censored]]

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.

[DVaut1]

[ 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.