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Those who denigrate "activism" usually express support for 'textualism', as far as I have seen.
I've been listening to talking heads discussing this for the last couple of days, getting more and more frustrated with what's being said, because it makes no sense.
Extra Stout and I started this in the Miers thread. I thought that was a good start, but it has been buried there.
So I ask here: what is "judicial activism?" I want more than just "someone who doesn't strictly construe the law and the Cons ution." I want something more than "a liberal judge" or "a conservative judge."
I don't want articles with someone else's explanation of judicial activism.
You tell me: what are the earmarks of judicial activism? and what is right or wrong with it?
No judgments, just curiosity and a hope for some non-partisan, thoughtful discussion.
Those who denigrate "activism" usually express support for 'textualism', as far as I have seen.
Can one be a "textualist" and an activist at the same time?
For instance, the 14th Amendment guarantees Equal Protection of the law to every citizen of every state, but Brown v. Board of Education, which is cited as a clear case of judicial activism, seems to rely on the text to strike down separate but equal conditions.
Do those two things jive?
Good point. I think we are defining activism too broadly. The conservative commentary I've read is usually along the lines of opposing 'activism' that goes beyond what is perceived to be the basic governmental role in society. Today, that means what goes beyond guaranteeing basic freedoms. The Cons ution was a do ent designed to limit governmental power. Social conservatives, in general, like that, so textualism jives with what they believe (absent certain issues) about government's role.
Of course, disagreements about what cons utes "basic freedoms" have been the source of centuries worth of debate, war and revolution.
Here's flaming NYT liberal coming out against JA, which he seems to say is (appointed) judicial system "making" law rather than the (elected) legislative.
But the when US Cons ution is only 8000 words from 200 very long years ago, it seems to me like a straightjacket, even with amendments, when applied "strictly".
I think the conservative vs liberal "judicial activism" boils down to the conservatives trying to use the law to freeze society, static, as is (ie, with the conservatives holding power, money, privilege), letting everybody else rot, without any safety net. aka, an inhumane, dog-eat-dog "social/economic Darwinism". Conservatives love this because they start out as Top Dogs.
While the liberals want to use the law, humanely, to protect society's weakest and poorest (they will ALWAYS be with us) and minorities with some kind of safety net against the predations of the powerful individuals, rapacious organizations, assuring equality of opportunity.
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October 4, 2005
Order in the Court
By NICHOLAS D. KRISTOF
With another Supreme Court battle looming, this time over Harriet Miers, let's acknowledge something up front: Republicans are right to complain about judicial activism.
One of the most fundamental mistakes that liberals made after World War II was, time after time, to seek social progress through the courts rather than through the political process.
It started well, with the Warren Court's unanimous decision in Brown v. Board of Education to force the desegregation of schools. That decision was so manifestly right - and alternative routes to justice so manifestly broken - that court rulings then became the liberal template for achieving a more humane society.
The left went to the Supreme Court to achieve a range of victories it could never have managed through the political process: barring school prayer, protecting protesters who used four-letter words, guaranteeing lawyers for criminal defendants, and securing a right to privacy that protected contraception and abortion.
It's almost taken for granted on the left that if you support abortion rights, you must have agreed with Roe v. Wade, or if you support gay rights, you must favor court rulings endorsing gay marriage. But court rulings can cons ute fine justice and bad law.
Archibald Cox, the great cons utional lawyer, yearned for social progress but was troubled by cons utional stretching. For example, when other avenues were unavailable, the Supreme Court used the 13th Amendment, which simply banned slavery, to bar private discrimination against blacks. It was a worthy outcome, achieved by torturing the Cons ution.
Don't get me wrong: I agree with the spirit of the Warren Court decisions, and as a kid I worshiped William Douglas the way my friends worshiped Hank Aaron (I was an insufferable child). I saw how court rulings could affect our lives: my high school in rural Oregon banned teachers and students from having facial hair, until the A.C.L.U. took up the case - and the school caved.
So, granted, the courts were often the most efficient way to advance a liberal agenda, and cases like Roe v. Wade now deserve respect as precedents. But there were two problems with the activist approach.
The first was that these rulings alienated ordinary Americans who just could not see how the Cons ution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right.
The second objection is that conservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.
"Judicial activism" is usually associated with liberals, but Paul Gewirtz of Yale Law School has shown that lately conservatives have been far more likely to strike down laws passed by Congress. Clarence Thomas voted to invalidate 65 percent of the laws that came before him in cases, while those least likely to do so were Ruth Bader Ginsburg and Stephen Breyer. Indeed, Justice Breyer has written a thoughtful new book, "Active Liberty," which calls for judicial restraint and suggests that the best arena for resolving crucial national questions is legislatures rather than courts.
A growing number on the left are questioning the traditional idea of using courts to achieve a more liberal society. Justice Ginsburg, in her Senate hearings, even criticized the scope of Roe v. Wade for short-circuiting the legislative process: "My view is that if Roe had been less sweeping, people would have accepted it more readily, would have expressed themselves in the political arena in an enduring way on this question."
In the magazine of the Democratic Leadership Council, Prof. William Galston warned:
"We must acknowledge that as a party, we have opened ourselves to charges of elitism. We cannot be an effective party if we subs ute litigation for mobilization. We cannot be a democratic party if we do not trust the people."
That doesn't mean blindly trusting Ms. Miers or any other Supreme Court nominee. But it does mean that the main mode for seeking a more liberal agenda, such as permitting gay marriage or barring public displays of the Ten Commandments, should be the democratic process, not the undemocratic courts. And it also suggests that the Republicans are dead right to fret about judicial activism - and we should hold them to their word.
Last edited by boutons; 10-04-2005 at 09:15 PM.
Whenever I hear the words "judicial activism" or "legislate from the bench" I automatically replace them with "the judges who don't rule the way I'd like." Maybe I'm just jaded, but whenever politicians start debating the ethos of the judicial system, I let out an ironic chuckle and automatically assume they are just posturing for political reasons.
Okay, scott. But is it wrong for a judge to consider the role of the judicial system, the policy considerations that support or run contrary to a particular legislative or executive act, the societal cir stances that exist at that time, and things like that in making decisions? or should a judge just compare statutory language against the relevant provision of the Cons ution? does judicial precedent play any appropriate role in the way that a judge should make decision, or should precedent be a suggestion?
Building from that, I'm also curious how we look at judicial activism where the issue at hand isn't one of "positive law" -- that is, a situation where something has happened, but there is no statute to compare against the Cons ution and, thus, no basis for textualism.
I appreciate the answers so far. I'm interested to see if we can figure out what the everyone is so upset about.
"so upset about."
what?
as the cartoons said, the hard right and evangelicals were expecting a cultural warrior, like another Scalia or Thomas or Bork, with a paper trail to prove his/her strong conservatism and strict constructionism to swing the court to the right for the next 20+ years.
any other upset-tedness would most likely be consternation that she has no defining record, and is just another dubya crony. Just chosen for loyalty and familiarity, instead of competence or suitable experience.
dubya, being neither a lawyer nor skilled politician nor judge of people nor accomplished at anything, is incompetent to assess competence.
I wonder if she was his choice, and his bubble team just let swing from his own rope on this one?
Last edited by boutons; 10-04-2005 at 11:15 PM.
Is the right to privacy an example of judicial activism?
Are Miranda rights an example of judicial activism?
"dubya, being neither a lawyer nor skilled politician nor judge of people nor accomplished at anything, is incompetent to assess competence."...................................... .......................
And just what are your credentials that make you so competent to make such a statement?
"Judicial activism" is a code word for people who want judges to be judicially active in ways they agree with, but not "active" in ways they don't.
It is nothing more than a poorly understood legal concept that ignorant people latch onto as some panacea against change they don't like.
[QUOTE=boutons]Here's flaming NYT liberal coming out against JA, which he seems to say is (appointed) judicial system "making" law rather than the (elected) legislative.
But the when US Cons ution is only 8000 words from 200 very long years ago, it seems to me like a straightjacket, even with amendments, when applied "strictly".
I think the conservative vs liberal "judicial activism" boils down to the conservatives trying to use the law to freeze society, static, as is (ie, with the conservatives holding power, money, privilege), letting everybody else rot, without any safety net. aka, an inhumane, dog-eat-dog "social/economic Darwinism". Conservatives love this because they start out as Top Dogs.
While the liberals want to use the law, humanely, to protect society's weakest and poorest (they will ALWAYS be with us) and minorities with some kind of safety net against the predations of the powerful individuals, rapacious organizations, assuring equality of opportunity.
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and then RG said:
Quote:"Judicial activism" is a code word for people who want judges to be judicially active in ways they agree with, but not "active" in ways they don't.
It is nothing more than a poorly understood legal concept that ignorant people latch onto as some panacea against change they don't like.Unquote.
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Key words used by boutons: "But the when US Cons ution is only 8000 words from 200 very long years ago.....While the liberals want to use the law, humanely, to protect society's weakest and poorest (they will ALWAYS be with us) and minorities with some kind of safety net against the predations of the powerful individuals, rapacious organizations, assuring equality of opportunity. "
The liberals truely beleive this. The Cons ution is as valid today as the day it was written. It sets down the rules we should live by. It is not a living do ent, but a static one. It tells the Government what it cant do, not what it can do. That was the purpose. It is there as Roberts said, sometimes the little guy wins and sometimes the big guy wins. The supremes are not there to make law but to make an honest judgement based on law so long as it does not violate the Cons ution. Hence, they ruled the Federal Government cannot pass a law on having a gun within so many feet of a school. Not that it was not a good law, it was just that the Federal Government had no jurisdiction in that particualar instance. The area belongs, rightfully so, in the states jurisdiction.
RG stated: "Quote:"Judicial activism" is a code word for people who want judges to be judicially active in ways they agree with, but not "active" in ways they don't.
It is nothing more than a poorly understood legal concept that ignorant people latch onto as some panacea against change they don't like.Unquote.
That is true in some cases but not all. I, personally, just want the Feds to take care of the Federal end of things, get out of my life otherwise. Let the States take care of their things.
It is a little tiresome for the taxpayers of this country to have to foot the bill for every little cause that comes along. Like the gays and lesbians, the homeless (used to be called bums). That is not what taxes are paid for, or weren't in the beginning. But for those of you who object to my verbage, would you please go back and look how much money is spend by the the Federal Government, State Government, County Goverment and City government for so called "causes". That is not Governments job, and I for one want a judge that calls the shots on the original intent of Government, no more or less.
I don't have an answer for your question to me, FWD, but this article is a good example of what I think myself and Random Guy are talking about (ignore the obvious bias presented by the author):
http://www.msnbc.msn.com/id/9611497
Assisted-suicide case a lesson in hypocrisy
Bush's efforts to overturn law contradict his statements on court's role
By Arthur Caplan, Ph.D.
MSNBC contributor
Updated: 3:05 p.m. ET Oct. 6, 2005
When it comes to U.S. Supreme Court appointments, President Bush and the Republicans in Congress have made it crystal clear what their core requirement is — no "legislating from the bench."
Both with the nomination of new Chief Justice John Roberts and now, with Supreme Court nominee Harriet Miers, Bush has insisted that he has selected people to serve as judges who will not override the will of the American people. So one has to wonder what his administration is thinking in pressing the case against physician-assisted suicide in the state of Oregon? Or, more accurately, why is the administration not telling us the truth about how it really views the role of the Supreme Court?
The state of Oregon is the only state in the nation where it is legal for a physician to prescribe a lethal dose of medication to a terminally ill patient who requests assistance in dying. The citizens of Oregon approved “The Oregon Death With Dignity Act” by a ballot initiative in 1994. In 1997, a push was made to revoke the law. But again Oregonians voted to permit physician-assisted suicide, this time by a larger majority than they had three years earlier.
Various attempts have been made by the Department of Justice to challenge the cons utionality of the law in court. In 2002, U.S. District Judge Robert Jones, in ruling against the attempt by the Bush administration to block the law, said, “Oregon voters decided not once, but twice to support the law and have chosen to resolve the moral, legal and ethical debate on physician-assisted suicide for themselves."
But Bush and his administration will not give up. Then Attorney General John Ashcroft pressed the case on appeal and it has now wound up in front of the Supreme Court. The president’s conservative base is so strongly opposed to any form of assisted suicide that it has sought all possible means to overturn the Oregon law.
The Justice Department argued before the Roberts court on Wednesday that the federal Controlled Substances Act gives the U.S. attorney general the power to prohibit the use of drugs in assisted suicide, regardless of state law. This is truly grasping at a straw to overturn the will of the people of Oregon.
No record of abuse
This 6-year jihad against the Oregon law might make some sense if there had been a pattern of terrible abuse of the dying and disabled since its enactment. As it happens, I am very wary of legislation permitting physician-assisted suicide. I worry that it could lead to pressure being put on people to end their lives prematurely or people with psychiatric or physical disabilities being dispatched for the convenience of others or to save money. But there is no such record of abuse in the wake of the law.
While some Oregonians dying of cancer, AIDS or Parkinson's disease do request a lethal dose of medication, very few actually wind up using it. There have been fewer than 300 cases in the years since the law was implemented. And despite a concerted effort by opponents of physician-assisted suicide to find cases in which the law has led to abuse or misuse, I know of only one case in the past five years in which any serious challenge has been raised regarding the ethics of patients, families or doctors who have honored a request to die.
So what is Bush thinking? Why is the Justice Department trying to use a broad interpretation of an obscure federal statute to restrict a law legislated twice by the citizens of Oregon that has not led to any problems or difficulties since its enactment?
There is only one answer: The president is not telling the truth. He is only willing to respect the decisions of Americans if he agrees with them. He is only willing to advocate for a conservative court if it upholds a social agenda that he agrees with. He is not willing to allow a state to follow a policy regarding the terminally ill if he does not agree with it. And he clearly expects the Supreme Court to "legislate from the bench" when it suits his moral agenda.
The federal government should not have brought the case against Oregon’s law. And the Supreme Court should not listen to the amamie argument that a statute intended to prevent the illicit use of drugs somehow gives the federal government the right to tell the citizens of Oregon how they must die when they are terminally ill.
The administration constantly bemoans the fact that Roe v. Wade imposed a policy on the American people about abortion that was never legislated. Oregon has a policy on assisted suicide that was legislated — twice. Bush and his administration should be ashamed for trying to use the Supreme Court to do what they claim they do not want any federal judge or court to do. The ethical hypocrisy involved is beyond description.
© 2005 MSNBC Interactive
I wanted to revisit this because there has been an interesting development in the last few days that suggests (again) that "judicial activism" and "strict constructionist" are terms with no real meaning in the political realm.
Earlier this month, a 3 judge panel of the Ninth Circuit dismissed an action brought by parents of school children who were asked, while in school, to answer questions related to sexual matters. The Ninth Circuit concluded that the interests that the parents were seeking to protect (the right to have their children introduced to sexual issues at the parents' discretion) was not one that was Cons utionally protected. Specifically, the Court explained that “While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally ‘committed to the control of state and local authorities.’” That conclusion echoed similar conclusions that the 1st and 6th Circuits had reached, based on Supreme Court precedent from the 1920's. It ultimately means that the Court is deferring to the executive and legislative branches to write laws concerning these issues and that, in the absence of such laws, judicial involvement would be improper.
Yesterday, the United States House of Representatives (by a 320-91) passed a resolution that took the 9th Circuit to task for not taking a broader reading of the Cons ution and for not recognizing a cons utional claim in that cir stance. In thinking about that, I stumbled upon this blog entry from a UCLA law professor who argues that the House is essentially telling the Ninth Circuit that it's lack of activism is unconscionable:
I think he's right on that point, which is what started me on this thread in the first place. I mean, ultimately, "judicial activism" relates less to what actually went on and more to the result -- if it's an unpopular result, it must be an "activist" decision, goes the argument. That can't possibly be the standard, though; were it the standard, "judicial activism" would lack any objective meaning at all -- it's meaning would depend entirely upon one's viewpoint and the particular context of a particular case, and even then it would depend entirely on what the result was without any concern for how the court arrived at that particular result. It strikes me as a rather unprincipled effort in developing hot rhetoric to aid one side's political agenda.
Last edited by FromWayDowntown; 11-17-2005 at 02:41 PM.
"unprincipled effort in developing hot rhetoric to aid one side's political agenda."
We're hearing these words from politicians, who, as a class, are best described as unprincipled, hypocritical, s, thieves, liars, corrupted. I assume there are a couple politicians who don't fit, but they are "the exceptions that prove the rule".
"states rights" is something that we haven't heard much of since the 50/60s when it was a code word for the states, esp MS, AL, GA, FL, LA, TX, to have the right to be racist and segregationsist w/o federal intervention.
Conservatives want smallest role/rights for fed govt, and increasing role/rights for state govt.
But when the 2000 election was in the balance, the Repubs went running the FEDERAL SC for a verdict, rather than let FL work it out their state election at the STATE level.
Just another example of a phrase being used as a rallying point, "states rights", until it gives an unwanted result. Then it's null and void.
The Reagan/Repubs were against deficits. They wanted a Cons utional amendment to force the Fed govt to have balanced budgets. 20 years later, the Repubs are running deficits that put the federal govt into a multi-decade fiscal disaster. liars and hypocrits.
Last edited by boutons; 11-17-2005 at 04:00 PM.
Judicial activism occurs when a judge decides something differently than you would have decided based on your political persuasion.
OG, are you sure? What is wrong with just deciding on what is said, not what the judge thinks it should have said. Like the cases that are decided about religious issues. The cons ution only says that the state shall not establish a religion. But judges have decided that this really should mean they cant even acknowledge a religion. We are coming upon two holidays, Thanksgiving and Christmas which has been established a National holidays for many years. But the courts say the Government cannot even acknowledge them thru some display of the holiday on public property. It makes no sense.
That's about it. Or to add, a judge that makes a ten page opinion out of a 1 sentence law.
I was half-joking. But the term judicial activism is a political buzzword thrown around by politicians when they don't like the outcomes of controversial cases. It's just another method they use to tell cons uents and lobbyists where they stand. It's essentially a meaningless phrase. Like calling an ump a sucker.
they do that to torture first year law students
That's patently untrue, xray -- in fact, your statement is complete bull .
The courts have said that government can acknowledge the religious nature of the holidays, so long as it doesn't ONLY recognize the religious nature of the holidays. If government wants to display ONLY a manger scene, that's uncons utional. If government wants to display religious imagery (Christian and Jewish) along with Santa Claus and reindeer and snowmen and sleigh bells and candy canes, it's a different question. The difference between the two displays is the difference between acknowledgment of the religious nature of the holidays and endorsement of a particular religious viewpoint in celebrating the holidays.
Still, that's not the question. The question, again, is consistently defining judicial activism -- "just deciding on what is said, not what the judge thinks it should have said."
The 9th Circuit example proves to me that the issue isn't always deciding cases based on "what the law says" -- the 9th Circuit decided its case based on what the law actually says and Congress thinks that result is wrong.
How is that NOT asking that court to be activist if "judicial activism" means deciding cases based on something other than the black letter of the law?
"Judicial activism" is a complete fiction concocted to assail judges who "reach the wrong result" and refuse to allow legislators to do whatever the they wish to do.
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.
That was a strict constructionist ruling. It was a judicially restrained ruling.
Religious activists immediately decried the "judicial activism" of the 9th Circuit in making that ruling. They therefore demonstrated that they have no idea what "judicial activism" means other than "decision that we don't like." They could have called the ruling "morally reprehensible." They could have called the ruling "hypocritical." They could have said "Interesting, isn't it, how the 9th Circuit bounces around between activism and restraint depending upon which approach best suits their radical, anti-religious, anti-family social engineering agenda, isn't it?"
But they didn't make those criticisms.
What is legislative activism, FWD?
You got to be kidding me.......you really believe what you just said?
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.
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