Why is there so much fuss about "activist judges"?

I'm sure the people really cared about the "no shooting whales while riding in a car," law in Tennessee.


Ooohh here's some laws that people really cared about, too.

Alabama

It is illegal for a driver to be blindfolded while operating a vehicle.

Dominoes may not be played on Sunday.

It is illegal to wear a fake mustache that causes laughter in church.


Yes, these laws clearly are valuable to society.

And it isn't the judges place to ignore and strike down laws, because again: if they can do it with one thing, what is stopping them from doing it another time; and it is a tyrannical force if they have the ability to ignore or invent their own laws. Also: if you think that only conservatives are upset about this issue, you are wrong.

That sounds like the same argument used in the Scopes trial, didn't work then either.


For more laws that people cared about go here.

 

Actually, despite what is implied during the Edumacation process, Scopes lost.

The decision was overturned a year later because a Jury should have issued the $100 fine and not the judge, hardly a resounding legal victory.

 

Oh I'm well aware of that. That is not why I brought it up and in no way meant to imply that he won.

 

The "bonehead" laws you are talking about are laws that the people want, as they elected those people into office.

Many attempts at passing numerous laws have been met with protests on both sides. That legislators have been elected by the people doesn't mean that those legislators invariably represent the true will of the people.

To use the example of the Texas "sodomy" law, that law has been rewritten several times. There were plenty of people in Texas--and it wasn't just us gays--who didn't support that law in any of its various incarnations. At one point it was illegal for both heterosexual and homosexual couples to engage in any sexual intercourse that wasn't missionary style, penis-to-vagina intercourse. Then in 1973 the legislators decided it was ok for heterosexual couples to engage in that type of sex, but not for homosexuals. Let's just say for argument's sake that the people did support that revision. It's still discriminatory, and just because they want the law doesn't make it a just law. Not to mention that it could never be enforced without violating other laws.

Could you reallistically, consistently enforce a law that requires you to break into people's houses to catch them in the consensual act? You need a warrant for that. For a warrant, you need probable cause. Where are you going to get probably cause to get a judge to issue a warrant to see if you find two men or two women having sex?

Lawrence and Garner were the exception to the rule on that law; it was very rarely enforced, but left on the books as, in Bush's words, "a symbolic gesture of traditional values." Sorry, but you need a better purpose for a law than to be a symbolic gesture. You need a law you can realistically enforce. However, that doesn't mean that gays weren't still discriminated against. Rather than put gays through due process (i.e., a trial), it was merely assumed that any openly gay people had broken the law, and that was used to justify discrimination in housing, jobs, and even adoption. The state of Texas last year tried (and fortunately failed) to pass a law banning gay adoption, and their chief piece of support for such a law was the "sodomy" law, which had yet to be overturned. Such acts fail to realize that a criminal isn't a criminal until he has been convicted in a court of law.

And it isn't the judges place to ignore and strike down laws, because again: if they can do it with one thing, what is stopping them from doing it another time; and it is a tyrannical force if they have the ability to ignore or invent their own laws.

Actually it is. Judicial review has been part of their laws since Marbury v. Madison. The Constitution declares itself to be the supreme law of the land, along with all laws "pursuant thereof." This begs the question, what are laws pursuant thereof, and what are laws not pursuant thereof? The logical conclusion is that laws that are not pursuant cannot be the law of the land. And as it is the courts job to interpret the laws, it is also their job to decide which laws are and are not pursuant.

Also: if you think that only conservatives are upset about this issue, you are wrong.

Right you are. Plenty of liberals are furious that activist judges elected Bush president. Sadly, most conservatives won't admit that it was judicial activism.

 

Obi-Ewan, you are correct about the Supremem Court decision.

However, they were responding to an activist Florida Court.

Sadly, most conservatives won't admit that it was judicial activism.

That's because their side won. Both sides manipulate the Constitution to suit their own ends. Unfortunately, party politics has all but destroyed the Constitution.

 

I'm not sure Bush/Gore is a great example of an activist court electing a president. After all, not a single recount ever had Gore winning the state.

 

Right you are. Plenty of liberals are furious that activist judges elected Bush president. Sadly, most conservatives won't admit that it was judicial activism.


I'm not sure Bush/Gore is a great example of an activist court electing a president. After all, not a single recount ever had Gore winning the state.

 

The above smiley was made in lieu of actual evidence to the contrary.

 

There will never be evidence to the contrary since that would be bad business for our government.

 

Evidence that Gore won:

http://www.americanpolitics.com/2001gore.html

http://democrats.com/display.cfm?id=181

http://www.guardian.co.uk/international/story/0,3604,450264,00.html

http://www.gorewon2000.com/

http://www.consortiumnews.com/2001/111201a.html

http://www.media-criticism.com/Election_Coup_Detat_2001.html

http://www.iknowwhatyoudidlastelection.com/bush-supreme-court.htm

And to those who say that the Florida court was the one engaging in activism, I'd like to highlight this part:

Q: I'll bet I know the reason. I heard Jim Baker say this. The votes can't be counted because the Florida Supreme Court "changed the rules of the election after it was held." Right?
A. Dead wrong. The US Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the US Supreme Court found the failure of the Florida Court to change the rules was wrong.

Q: Huh?
A: The Legislature declared that the only legal standard for counting vote is "clear intent of the voter." The Florida Court was condemned for not adopting a clearer standard.

Q: I thought the Florida Court was not allowed to change the Legislature's law after the election.
A: Right.

Q: So what's the problem?
A: They should have. The US Supreme Court said the Florida Supreme Court should have "adopt[ed] adequate statewide standards for determining what is a legal vote"

Q: I thought only the Legislature could "adopt" new law.
A: Right.

Q: So if the Court had adopted new standards, I thought it would have been overturned.
A: Right. You're catching on.

Q: If the Court had adopted new standards, it would have been overturned for changing the rules. And if it didn't, it's overturned for not changing the rules. That means that no matter what the Florida Supreme Court did, legal votes could never be counted.
A: Right. Next question.

 

The "fuss about activist judges" is mainly a result of the theories of constitutional interpretation which have prevailed over the last half-century. Traditionally, the constitution was interpreted to mean what its words mean, those words being given the understanding that existed when they were adopted. Under that philosophy (known as 'originalism'), "cruel and unusual punishments", for instance, means exactly what it meant on December 15th, 1791, when the Eighth Amendment was ratified.

However, judges now tend to go by the 'living constitution' theory, under which the constitution draws its meaning from modern times (there are a whole bunch of vacuous phrases that have been used, but they all, ultimately, arrive at the same result: the constitution meaning exactly what the judge wants it to mean). According to the 'living constitution', "cruel and unusual punishments" changes in meaning over time, according to 'consensus' amongst state legislatures and the 'reasoned judgement' of the federal judiciary.

The 'living constitution' theory is directly responsible for the politicisation of the judicial appointments process. As Justice Scalia remarked in Planned Parenthood v. Casey, "texts and traditions are facts to be studied, not convictions to demonstrate about". If judges stuck to 'originalism', their political views would be irrelevant to the meaning of the constitution, which essentially becomes a matter of historical fact. However, because judges apply the 'living constitution', the appointments process is the President and Senate's way of writing the constitution. If a president wants a right to abortion in the constitution, he need only appoint a judge who thinks one should be written into it. That, of course, will be oppposed by senators who take an anti-abortion stance. And politicised mayhem then reigns, a nominee's merit and academic ability being reduced to an irrelevancy.

To expose the utter fallacy that the Living Constitution is, we need only try and reason out why the courts have any right to interpret the constitution in the first place. Two logical routes can be taken. To begin with, let's take the Marbury v. Madison route (that being the Supreme Court case in which judicial review of Congressional legislation was originally established):

1. The constitution is a law, like any other law; it is simply a law that takes precedence over all other laws, in the same way that Acts of Congress take precedence over state law.

2. It is the role of the judicial branch to say what the law is, and that involves reconciling competing laws.

3. Just as where two statutes conflict and can't be reconciled, the later one takes precedence, so where a statute conflits with the Constitution, the Constitution takes precedence.

4. Therefore, the courts should interpret and apply the Constitution as a law, ignoring and invalidating incompatible inferior laws.

As an alternative, one can justify the right of the courts to apply the constitution in democratic terms:

1. The will of the people is, in the United States paramount.

2. The Constitution represents the settled will of the people, not just the transient will of the majority.

3. Therefore, by rigorously applying the constitution, the judicial branch is doing the people's will.

But once the fallacy of the 'living constitution' has been accepted, both routes no longer work. For the purposes of the first route, if the Constitution is a changing collection of vague principles--"a philosophical empty bottle for each generation to fill with its most deeply held beliefs", as Justice Scalia puts it--then it is no longer a law. And so its application falls squarely outside the province of the judicial branch. The best body to decide just what the empty bottle should be filled with is Congress (a democratic assembly, not a collection of robed-for-life wise men), and so the Constitution might as well be abolished, returning America to the British system where Parliament has

 

Bravo!
*aplauds*

 

Would you agree, Branthoris, that such "activism" is not limited to the "liberal" side of the aisle?

Peace,

V-03

ps what is your take on the concept of "rational basis review", which many legal scholars have taken as a counter to the originalist argument? (many conservative jurists only uphold or invalidate laws that don't fit in with what they believe are "deeply rooted in our history and tradition").

 

Absolutely. It's not a liberal/conservative issue. If it were, being a liberal, I'd have to take the opposite side.

As for rational basis review, I'm not really sure whether it's consistent with originalism or not. I'll have to think about that one.

 

Seeing as in how 'activism' has been a part of the law for some 200 years now, it would take an ENORMOUS stetch of 'activism' to get rid of the 'activism.' You dig?

 

I agree that the consitution is being amended to death by lawmakers who bend to minority activists. Unfortunately this country is being ruled more and more by the activist minority rather than the FAR TOO tolerant majority. It's sad really because it is ruining our once great nation and making it into an immoral and violent place to live which is becoming increasingly unsuitable to raise a family in.

I weep for America and the great principles that it was founded on. They are being trodden underfoot by people who care more about themselves than the greater good of all.

BTW, I agree that both conservatives and liberals are far too involved in activism. However I believe liberals do take up most activism activities. Right now, however, I am pretty fed up with both parties. Neither one is doing what I believe to be the right thing for America. Bush is still the best man for the job, IMO, when compared to those running against him (the only candidate that the dems had running in the primary that actually believed in was Lieberman. The rest are all kissups that will say anthing to get a vote). But I disagree with many of the things he has done.

 

OWMC: I have no problem with the judicial branch performing its constitutionally assigned functions; indeed, that is absolutely essential. Where a state, or one of the political branches, contravenes the actual meaning of the constitution, then 'judicial activism' is to be welcomed.

There's a difference between originalism and thinking that the judiciary should stick its head in the sand and never do anything. For example, the recent ruling by a federal appellate court that US citizens cannot be detained on US soil by the mere fiat of the executive branch could be described as an activist decision; it was also entirely correct. Indeed, it didn't go far enough, based as it was on the Non-Detention Act rather than the constitution; indefinite detention by executive order is a manifest contravention of the Due Process Clause (as originally understood).

 

IkritMan:
The "bonehead" laws you are talking about are laws that the people want, as they elected those people into office.

You're assuming that the state legislatures/executives always represent the will of the state's people, which is hardly the case.

If you assume that, what's to say that I can't assume that the Supreme Court represents the will of the people, because the nine justices were appointed by the President and the Senate, which are elected by the people?

Darth Mischievous:
That's right, but there is no inherent or prescribed right to abortion found within the US Constitution so essentially the US Supreme Court invented it basically Amending the US Constitution on their own.

No, it wasn't; the Roe v. Wade ruling was on the basis that no one may be subjected to "unreasonable searches and seizures", as dictated by the Fourth Amendment.

Now, how much of a stretch that was is debatable, but you can hardly say that the justices pulled the ruling out of their rear ends. It did have at least some constitutional foundation.

 

It doesn't mean The Court wasn't legislating from the bench either.

They did have some constitutional foundation; unfortunately, the wrong branch of gov't made it law.

 

No, it wasn't; the Roe v. Wade ruling was on the basis that no one may be subjected to "unreasonable searches and seizures", as dictated by the Fourth Amendment.

This is unfortunately incorrect.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. (emphasis added)

See also Casey:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.

 

Oops, my mistake.

Seems kind of odd, though, to use the Fourteeth rather than the Fourth, or to not use the Fourth at all.

 

Unfortunately this country is being ruled more and more by the activist minority rather than the FAR TOO tolerant majority. It's sad really because it is ruining our once great nation and making it into an immoral and violent place to live which is becoming increasingly unsuitable to raise a family in.

You mean that "minority" who worked to make sure women have the right to vote, hold jobs, and use birth control? The "minority" who worked to make sure African-Americans don't have to sit in the back of the bus anymore or pay "poll taxes" they couldn't afford in order to vote?

Yeah, what an immoral and violent place we're living in. How dare those women, minorities, and homosexuals want equality. How dare women be able to decide whether or not they want to bear a child.

 

You mean that "minority" who worked to make sure women have the right to vote, hold jobs, and use birth control? The "minority" who worked to make sure African-Americans don't have to sit in the back of the bus anymore or pay "poll taxes" they couldn't afford in order to vote?

No, that was all done by the majority, who were finally responding to the uncompromising minority..

If we want to keep the discussion historically grounded, that is...

 

But Vezner was talking about our "once great" nation--great when?

Also, how long did it take for that majority to bend to the minority?

 

Also, how long did it take for that majority to bend to the minority?

As long as it took so that the very principles of democratic ideals were not smashed beyond all repair.