What is "judicial activism?"

[Oh, Gee!!]

I wouldn't think there would be such a thing, really.

The Legislature presumably acts upon the will of the people and wouldn't be "activist" in how it goes about it's business in any meaningful sense. If the Legislature oversteps its bounds by enacting a law that, even if highly popular with the citizens, is contrary to the Cons ution, then the law should be declared uncons utional by the courts. That's part of the function of courts -- if courts did not do that, Legislatures would have no checks on their powers other than an executive possibility, which isn't always an assurance of balance.

but the court can't pursue cases. someone has to bring suit making a cons utional claim. in the meantime, many lives could be adversely affected

[FromWayDowntown]

You got to be kidding me.......you really believe what you just said?

I have no idea what that's supposed to mean.

Are you suggesting that it would have been better for the 9th Circuit to say that there was a Cons utional right in question and that the parents should have been allowed to sue under a cons utional theory to obtain a remedy?

If so, as Extra Stout notes, you would be suggesting that the Ninth Circuit be "activist" in the sense that it would be reading into Cons utional law a protection that has never before been recognized.

[spurster]

In the case FWD referenced, the 9th Circuit basically said that there were no cons utional rights being infringed by teaching 7-year-olds how to give a blowjob in school, and that these Californians should seek remedy by voting out those school board members, or by having the Legislature in Sacramento do something about it.

There's nothing about "how to give a blowjob in school" in this case. From the court decision:

The children were
asked to rate the following activities, among others, on a scale
from "never" to "almost all the time": "Bad dreams or night-
mares," "Feeling dizzy," "Wanting to yell at people," "Want-
ing to hurt other people," "Trying not to have feelings,"
"Can't stop thinking about something bad that happened to
me," and "Wanting to kill myself." Ten of those questions
were about sexual subjects.

The sexual references are:
8. Touching my private parts too much
17. Thinking about having sex
22. Thinking about touching other people's private parts
23. Thinking about sex when I don't want to
26. Washing myself because I feel dirty on the inside
34. Not trusting people because they might want sex
40. Getting scared or upset when I think about sex
44. Having sex feelings in my body
47. Can't stop thinking about sex
54. Getting upset when people talk about sex

[xrayzebra]

I have no idea what that's supposed to mean.

Are you suggesting that it would have been better for the 9th Circuit to say that there was a Cons utional right in question and that the parents should have been allowed to sue under a cons utional theory to obtain a remedy?

If so, as Extra Stout notes, you would be suggesting that the Ninth Circuit be "activist" in the sense that it would be reading into Cons utional law a protection that has never before been recognized.

I am saying that parents have the final say in their childrens education.

And didn't the school system (district) leave the sex questions off the material sent home to parents?

[FromWayDowntown]

but the court can't pursue cases. someone has to bring suit making a cons utional claim.

Of course, but that's the point, I think. The Mass Supreme Court has been castigated for its ruling on same-sex marriages, but it's not as if the Court got together and took up the issue without a challenge before it. When the legislature's action in banning same-sex marriage was challenged in that Court, the Court examined the legislative enactment against the cons utional rights at stake and determined that the Assembly had passed an uncons utional law.

Again, I'm not sure what legislative activism would be.

[xrayzebra]

Of course, but that's the point, I think. The Mass Supreme Court has been castigated for its ruling on same-sex marriages, but it's not as if the Court got together and took up the issue without a challenge before it. When the legislature's action in banning same-sex marriage was challenged in that Court, the Court examined the legislative enactment against the cons utional rights at stake and determined that the Assembly had passed an uncons utional law.

Again, I'm not sure what legislative activism would be.

Cant they also decline to rule?

[FromWayDowntown]

I am saying that parents have the final say in their childrens education.

Is that based on some cons utional provision?

You should read the Ninth Circuit's opinion, which directly addresses that point and cites a First Circuit opinion that negates your point. Parents don't have a cons utional right to dictate that schools develop a curricular activities that best suit the moral perrogatives of each individual family. If parents don't like a particular practice in a school, they can remove their kids to private schools or they can vote out those who determine what practices the school will use. But the Cons ution doesn't provide any right to dictate what questions kids can be asked at school.

How is that anything other than a strict constructionist determination?

[Oh, Gee!!]

Of course, but that's the point, I think. The Mass Supreme Court has been castigated for its ruling on same-sex marriages, but it's not as if the Court got together and took up the issue without a challenge before it. When the legislature's action in banning same-sex marriage was challenged in that Court, the Court examined the legislative enactment against the cons utional rights at stake and determined that the Assembly had passed an uncons utional law.

Again, I'm not sure what legislative activism would be.

That's what I'm saying. The legislature is a creative force that actively formulates policy that affects our daily lives. Sometimes they overstep the bounds and nobody makes them accountable without the long, drawn-out judicial process. The legislature (the politicians) are the real activists, yet they are the ones that accuse the judiciary of activism.

[FromWayDowntown]

Cant they also decline to rule?

In a state that employs discretionary review at the high court level, they could. But why should they? If a citizen challenges the law and the cons utionality of the law is important to many other citizens, why should the Court refuse to make a determination on the law's validity? Can you give me any reason to explain why ducking the question would be a good policy?

If someone brings the case and the case presents an important question, why shouldn't the court decide it then?

I doubt that most of the critics of the Court would be so perturbed by the decision to take the case if the Court had upheld the law. But again, that just goes to show that activism is, for the most part, an empty fiction -- a way of deriding decisions that some people don't like.

[FromWayDowntown]

That's what I'm saying. The legislature is a creative force that actively formulates policy that affects our daily lives. Sometimes they overstep the bounds and nobody makes them accountable without the long, drawn-out judicial process. The legislature (the politicians) are the real activists, yet they are the ones that accuse the judiciary of activism.

Well, I think that in a structural sense, a Legislature is intended to be an activist body. Thus, anything that the Legislature does is, rightfully so, activist in its nature. But that's the way it should be.

Courts, however, must have the ability to curtail the activism when it oversteps cons utional limitations and infringes on the rights of citizens who are adversely affected by a particular law. That's checks and balances and it is imperative to the maintenance of a cons utional form of government.

[xrayzebra]

Is that based on some cons utional provision?

You should read the Ninth Circuit's opinion, which directly addresses that point and cites a First Circuit opinion that negates your point. Parents don't have a cons utional right to dictate that schools develop a curricular activities that best suit the moral perrogatives of each individual family. If parents don't like a particular practice in a school, they can remove their kids to private schools or they can vote out those who determine what practices the school will use. But the Cons ution doesn't provide any right to dictate what questions kids can be asked at school.

How is that anything other than a strict constructionist determination?

I guess common sense plays no part in rulings. I am not a lawyer. But your comment "each individual family" brings to mind some rulings that have been made on just that sort of thing. There are quite a few rulings that have been made on the premise that you cannot infringe on individual rights because of some factor or the other. But it just seems to me and others, that when it comes to religion and family, they take a back seat. But when it comes to a minority that takes the front seat. I often wonder when France past a law banning scarfs in schools and religious emblems how that law would have fared in the US.

[Extra Stout]

You got to be kidding me.......you really believe what you just said?

Well, yes.

I didn't say I agreed with the ruling. I just said that calling it "judicial activism" makes no sense.

Strict constructionism and judicial restraint are not equivalent terms for "morally correct."

In my mind, the question is not whether the schools violated the cons utional right of the parents to determine the curriculum of the public schools.

I'm wondering whether the superintendent of schools committed a sex crime by administering that test.

[xrayzebra]

I'm wondering whether the superintendent of schools committed a sex crime by administering that test.

Now there is a thought.

[Extra Stout]

I'd also be curious about obscenity laws in the state of California.

Not that I'm the expert on California law.

But think about it. There is a word we use for the kind of people who ask 7-year-olds if they like to touch themselves or think about sex. The word is "pedophile."

If an ordinary adult asks a child those questions, he goes to prison and has to register as a sex offender.

[xrayzebra]

I'd also be curious about obscenity laws in the state of California.

Not that I'm the expert on California law.

But think about it. There is a word we use for the kind of people who ask 7-year-olds if they like to touch themselves or think about sex. The word is "pedophile."

If an ordinary adult asks a child those questions, he goes to prison and has to register as a sex offender.

Kinda reminds of the old comedy movie, was it Airplane? Where the actor who played in the Cop movies kept talking to the kid.....damn, terrible when you get old and cant remember all the names. But they had the blow up dummy flying.....

[FromWayDowntown]

I guess common sense plays no part in rulings. I am not a lawyer. But your comment "each individual family" brings to mind some rulings that have been made on just that sort of thing. There are quite a few rulings that have been made on the premise that you cannot infringe on individual rights because of some factor or the other. But it just seems to me and others, that when it comes to religion and family, they take a back seat. But when it comes to a minority that takes the front seat. I often wonder when France past a law banning scarfs in schools and religious emblems how that law would have fared in the US.

But common sense doesn't equate to the law. My problem with the entire paradigm of "judicial activism" is that it has no legal moorings. Common sense as a basis for judicial decision-making, likewise, has no particular legal mooring.

You couch it as a moral issue, but that's not the issue the Court was grappling with. The Court was concerned with whether the claims had a cons utional basis, since they were brought as cons utional claims. If the claims lacked a cons utional basis, then the parents could not prevail on the theories that they pleaded and thus, the claims were properly dismissed. I think what the Ninth Circuit said was: if the people living in a particular school district wish this practice to go away, they may do so by voting out the school board members who allowed it to happen or by approaching their state legislators and seeking a law that would prohibit the practice, but we're not going to allow the parents to challenge the practice by asserting claims based on cons utional rights that have never been acknowledged to exist. The Ninth Circuit expressly said that it was not deciding the merits of the program, since there would be no merits to decide if there was no cons utional right in play.

Now, it seems to me that if you quarrel with the Court's assessment on that issue, your only argument can be: there should be a cons utional right. But if you say that, you're saying that the Court should have created that cons utional right. And if you're saying that the Court should have created a cons utional right. I don't see how one can champion strict constructionism while vitriolically raging against judicial activism and at the same time be upset that a court refused to create a cons utional right that heretofore hasn't existed.

[FromWayDowntown]

I'd also be curious about obscenity laws in the state of California.

Not that I'm the expert on California law.

But think about it. There is a word we use for the kind of people who ask 7-year-olds if they like to touch themselves or think about sex. The word is "pedophile."

If an ordinary adult asks a child those questions, he goes to prison and has to register as a sex offender.

I don't think it would qualify as obscenity, since obscene material generally is material that has no scientific, literary, artistic, or social value. Here, I think I understand the argument to be that the questions are aimed not at appealing to some purient interest, but instead at developing scientific baselines to aid in detecting things like sexual abuse.

Is there a need for such a study and will it provide any useful data? I don't really know, but I'm skeptical. Is a public school a proper forum for conducting that sort of survey? Perhaps not, but then again, if you can articulate a scientific baseline that defines the need for the study, I can't imagine that you'll find a better cross-section for the purposes of conducting a survey than a public school.

But even if the survey is facially improper in a moral and social sense, unless it's made illegal by legislative enactment, the execution of the survey doesn't violate any particular, defined right. Accordingly, I think in a procedural sense that the decision is a correct one. The Federal Rules of Civil Procedure permit the defendant in that case to seek dismissal of the claim based on the plaintiff's failure to state a claim upon which relief may be granted. If there's no right, there's no basis for the relief, so dismissal is proper.

But the decision aside, I think the hubbub in its aftermath is the most significant part of what's going on here, for the reasons I've asserted throughout this thread.

[RandomGuy]

Judicial activism is nothing more than another example of effective "framing" of a debate by conservatives.

It is simply a code word for most conservatives to rail against judicial decisions they don't like.

If they don't like it, "it is judicial activism", if they do like a decision it is simply a great application of cons utional law.

[gtownspur]

^Judicial activism quite frankly means when the court oversteps their bounds in interpretation and thus take a "legislative" course. Judicial activism is real, and it has nothing to do with restraint. One can overturn an activist former interpretation that was not expressed by the Cons ution, but that is not what judicial activism is. If a liberal judge overturned a dicriminatory ruling that violated the Cons ution's meaning, then that is not judicial activism. It's when Judges of all stripes rule with the purpose to legislate, invent new clauses, and rule by what is in trend than the original intent of the Cons utions words in it the time it was written. Judicial activism can take form in the philosopy of a "Living, changing" Cons ution where original meaning is upsurped by political expediency.

The framers intended the cons ution to make men free and responsible for their actions, not to hold progressive ideas or hold the powerful at the mercy of the weak. It's not a do ent with the intention of supporting class warfare, or keynesian initiatives, or fair wages. All the other items are the duty of the legislature.

In essence, the court is supposed to by governed by the rule of law and not the rule of lawyers.

[RandomGuy]

I stand by my statement.

"Judicial activism" is nothing more than a phantom that conservatives like to tell scary stories about.

"Eat your broccoli little Johnny, or judicial activism will get you, booga booga".

I think trying to keep our nation regressed in cons utional litereralism is a bit like keeping a great dane in a cupboard. The cupboard was fine when the thing was a puppy, but sooner or later one has to have room to grow.

[gtownspur]

You'll be the first to whine once those same standards of literalism are thrown away to support right wing intiatives. Just like your lib pusses did when you decried the electoral college in 2000.

THis just proves that the only principle liberals stand on is "Liberalism". Anything to advance the destruction of the "man". (Insert funk guitar theme )Chicka Chicka waka chikka chika chika chika waka...