The United States Constitution-a General discussion

Interesting point. On a broad scale, I agree with you, and I think the judiciary, particularly the appointed-for-life appellate and Supreme Court justices, fulfill that role. If the "fires of revolution" do burn in the judiciary branch, they exist as intermittent flickers, as opposed to the bonfire in the Senate and the blazing wildfire in the House of Representatives.

However, I can't agree that the only goal of the judiciary is to maintain the status quo. If that were the case, then it would be better to hand the nation's judges their pink slips, since the only way to make sure the status quo is completely undisturbed is to make no decisions at all. Since U.S. law is precedent-based, every ruling has the potential to affect every future ruling. The courts simply have no choice but to cause societal change, either intentionally or unintentionally. We could alter that by getting rid of the deference to precedent, but then the judiciary loses the very conservative function that you mention.

If you look at the fact that every traffic court judge is technically "making history" in his own little way, it becomes very difficult to define what "judicial activism" is. The definition ends up essentially being "rulings that cause controversy" or "rulings that make people angry." It's hardly reasonable to tell judges they can't make those sorts of rulings, since A., it's difficult to predict the public's reaction to most things (just ask any ad executive or campaign manager), and B., all rulings make at least the losing party angry. Judges get a lot more death threats than legislators for a reason.

True judicial activism is extremely difficult to prove, since it involves intent. A judge has to walk into a case already knowing how he will rule, based on his pre-conceived beliefs rather than the facts of the case. This is essentially like a scientist falsifying data in order to prop up a hypothesis that he has already decided he will find correct. However, at least the scientist leaves a paper trail of altered or edited notes--the jurist does not.

The closest you can come to being able to provide evidence of judicial activism (short of a confession) is to look and see if there is a sudden and abrupt about-face in a judge's rulings which happens to correspond with some personal conflict of interest. If Judge Q suddenly starts rendering very pro-big business rulings after being appointed to the board of some large corporation, you have pretty good circumstantial evidence for judicial activism.

There's little you can do about judges who have always ruled a certain way, however. Is William Rehnquist a conservative judicial activist abusing his position in an attempt to impose his personal mores on the nation? Or does a very conservative interpretation of the law actually look correct to him? Assuming that conservativism is so deeply embedded in his personality and thought processes that it colors everything he sees, is there a difference between "judicial activism" and rendering a genuine opinion about the meaning of a law? Presumably, Rehnquist is conservative because he believes conservativism is right, both intellectually and morally. (It's hard to imagine how something could be morally right but intellectually wrong, anyway.) If he believes that conservativism is the most logically sound worldview, how can anyone tell him not to apply that "rightness" to his court decisions? He certainly can't be expected to hand down decisions he thinks are illogical or wrong.

Would Rehnquist personally want to see a more socially conservative America? Probably. Why? Because he thinks conservativism is right.

Does he render court decisions that advance the cause of conservativism? Yes. Why? Presumably, because he thinks conservativism is right.

Accusing him of judicial activism because he is a conservative person who tends to rule conservatively is hardly fair. In fact, it would be rather bizarre if he were personally liberal but persisted in making conservative decisions in the court.

 

Kimball, you made my point for me.

Bowers was as much a moral statement as Lawrence; it simply held that Judeo-Christian ideals regarding homosexual conduct could be codified into law for no other reason than they had been for centuries.

That's as much a moral and value statement as saying that they can't. The difference is, one of these decisions greatly curtails individual liberty and freedom, and one does not.

oophelia-

Kudos for your point on law and society. I couldn't have said it better myself.

Peace,

V-03

 

The closest you can come to being able to provide evidence of judicial activism (short of a confession) is to look and see if there is a sudden and abrupt about-face in a judge's rulings which happens to correspond with some personal conflict of interest. If Judge Q suddenly starts rendering very pro-big business rulings after being appointed to the board of some large corporation, you have pretty good circumstantial evidence for judicial activism.

However, can't activism also be applied to the advancement of minority agendas through the courts? Take that guy (his name escapes me) in Massachusetts (I believe that is the state) who issued the gay marriage licenses. Wasn't that activism? Again, take the judge who tried to remove the "Under God" phrase in the Pledge. Even if you agree with the ruling, isn't that also an example of acitvism? The vast majority of American taxpayers want the Pledge to stay as it is.

Courts can be used to push agendas onto the people without going through the legislature. The concept of Judicial Review has been absued greatly in the recent years.

 

I'm not sure if anyone has brought this up yet, but there was a public discussion between Justices Scalia and Breyer the other day on C-SPAN. The subject was "Constitutional Relevence of Foreign Court Decisions".

Transcript can be found here

 

I haven't checked it out, but you should be able to watch realplayer video of it here.

 

Edit:
Darth_OlsenTwins: I was actually terribly excited to read that two boring old guys have had a debate on the Constitution and international law. There's something wrong with me. I'll go check that out--thanks for posting it.

CK wrote:

However, can't activism also be applied to the advancement of minority agendas through the courts?

Not necessarily. Just because one side of an issue is taken up by an unpopular minority doesn't mean that it has a worse legal argument than the other side. A prime example is the Nazi group that went to court demanding the right to have a parade through a Jewish neighborhood in Skokie, Illinois. Neo-Nazis have approximately zero sympathizers in the mainstream population, but the First Amendment happened to be on this Nazi group's side. Ruling that the Nazis had a right to have their parade was not an act of judicial activism, it was just an acknowledgement that the Constitution covers wildly unpopular people too.

By contrast, an elected judge down south who was recalled a while back (I don't remember her name) had a notable history of ignoring juries' recommendations of death in capital cases. She advanced no coherant legal argument for why she set aside juries' recommendations in these cases. Based on various statements she had made and the fact that recommended sentences of death all somehow turned into life in prison in her courtroom, the public was convinced that she just didn't like the death penalty for her own reasons, and that she'd defied the will of the state's voters by making the death penalty de facto "illegal" in her own sphere of jurisdiction. *That* is judicial activism.

Siding with unpopular people who have reasonable claims to the better legal argument is not at odds with responsible jurisprudence. The better legal argument ought to come out on top, whether society likes the plaintiff/defendant very much or not.

Consistently siding with parties who hold favored positions, no matter how weak--or nonexistant--their arguments may be, is judicial activism.

Just from looking at an individual case, however controversial, it's difficult to tell whether a judge's rulings have an unwarranted bias toward some cause or other. To make a credible accusation of judicial activism, you need to see a pattern of ignoring legal reasoning in favor of promoting some group or issue. It helps your case if the judge has made comments outside the courtroom about how issue X is so terrible or Y is so wonderful.

There's nothing wrong with a judge consistently ruling in favor of a group or issue--even one he or she personally supports--so long as a reasonable person could believe that the favored arguments are better. There are judges out there who are known to be pro-business, pro-labor, pro-prosecution, pro-defendant, etc. None of this is wrong, so long as reasonable people inside and outside the legal profession can see how a ruling *could* be correct, even if they don't personally agree with it. Problems start when a large number of people can't fathom what a judge thinks he's doing by making certain rulings. Impeachment or recall is especially likely if fellow jurists can't figure out a judge's logic either.

In some ways, the court system is like the scientific community, in that everyone is setting out to prove his side of a case (his "hypothesis") correct, and everyone else is looking over his shoulder, trying to figure out if his argument (his "data") is any good. Good arguments are replicatable by others, just as good experiments are. The NAACP started the ball of the civil rights movement rolling by successfully challenging racist laws and practices on constitutional grounds, especially on the grounds of the 14th Amendment. These arguments were good enough that the NAACP's success could be replicated--an argument that won in Alabama could also be a winner in North Carolina and Virginia. This is the way that the interpretation of constitutional law starts to change, BTW. Before a controversial

 

This post contains my reply to Vaderize03's post of 13 January, in response to my post of 11 January discussing judicial activism and, specifically, Lawrence v. Texas.

In regard first of all to the principle of judicial review, we are in complete agreement. Myself and V-03 agree on the correctness of the holding of Marbury v. Madison--that federal courts have the power to review statutes for conformity with the constitution, and to decline to give effect to a statute if it is found incompatible. We disagree, however, on the method courts should use to interpret the constitution.

V-03 asks:

"In your opinion, are all matters on which constitutions are silent a) fall on state legislatures to rectify and/or b) defer to common law where legislatures have never acted (or have failed to act)?"

This was in response to my saying this:

"I'll focus the remainder of this post on federal courts, since state courts still operate under common law in some areas and consequently still have a legitimate law-making role in them--until a state legislature abolishes common law on a given subject, it remains within the power of state courts to develop it."

My answer to the question is 'yes' as far as state courts are concerned. If a state's constitution is silent on a given subject, and if the state has no relevant statutory law, then the state's common law controls. In areas still governed by common law, it is entirely legitimate for state courts to make new law--and to do so on the basis of policy, value judgements, etc.--because nobody else has yet touched that area of regulation.

However, my view is that once a state statute or the state constitution makes provision on a given subject, the relevance of state courts' value judgements and policy preferences comes to an end, and should play no role in the interpretation of such text.

Federal courts are a different matter because there is no federal common law. All federal law derives from the Constitution, from Acts of Congress, or from ratified treaties. Because federal courts are never called upon to apply common law (because in the federal system there isn't any), their policy preferences should never be relevant.

But this is indeed a digression. Moving on to Lawrence, what I was attempting to demonstrate is that the justices' own values are, ultimately, the only possible source from which the decision comes. We can eliminate text and history, because they point in the opposite direction. We can also eliminate precedent, because the precedent directly on point, Bowers v. Hardwick, had to be overruled to make way for Lawrence. I'm not saying that text, history or case law should be decisive; I'm simply going through a process of elimination. (I don't think, for example, that the literal terms of the Due Process Clause are the ending point in interpreting it; as V-03 points out, over-narrow interpretation can have consequences as perverse as over-broad interpretation.)

By eliminating text, history and precedent, I've tried to arrive at the crux of the matter, which I believe to be this: Had those justices in the majority in Lawrence thought that homosexual sodomy ought to be criminalised, the decision would have come out the other way.

34 years ago, Justice Black wrote that:

"When this Court assumes for itself the power to declare any law--state or federal-- unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the 'law of the land' and instead becomes one governed ultimately by the 'law of the judges."

Those words are as true today as they were in 1970.

I'll comment on a few further parts of V-03's post. (If you feel that there's anything significant I haven't responded to, please do let me know.)

"Their decision was not based on his

 

Ah, another great post, branthoris.

This discussion will go down in history .

Well, I will get to your points at some "point" ( ) this week; my online has been intermittent due to work and some internet access issues (I will be getting a new computer soon).

Stay tuned, I have things to say, especially on your comments regarding the definition of liberty and the role of state vs federal legislatures and courts in the process of social change (as well as what exactly "is" social change, from a subjective perspective).

.

Peace,

V-03

 

Sure. I'll look forward to it.

I'll also say something in response to what everyone else has been saying here, if and when I get the time (which may unfortunately not be for a while).

 

A few comments in relation to what ophelia and Kimball have been saying.

"If you look at the fact that every traffic court judge is technically "making history" in his own little way, it becomes very difficult to define what 'judicial activism' is. The definition ends up essentially being 'rulings that cause controversy' or 'rulings that make people angry.' It's hardly reasonable to tell judges they can't make those sorts of rulings, since A., it's difficult to predict the public's reaction to most things (just ask any ad executive or campaign manager), and B., all rulings make at least the losing party angry." (ophelia)

Oh, judicial activism has nothing to do with making people angry; that is indeed a necessary consequence of a judge doing his job. There are some Acts of Congress whose consequences annoy a lot of people, but the courts are obliged to give effect to them; people who dislike those consequences should blame the lawmaker.

I continue to doubt whether "judicial activism" is a useful term at all (because it means different things and is too often used to mean "judges doing anything at all"), although you can see above for my personal definition of the phrase.

"True judicial activism is extremely difficult to prove, since it involves intent. A judge has to walk into a case already knowing how he will rule, based on his pre-conceived beliefs rather than the facts of the case." (ophelia)

Ah, this is interesting. I believe that under current recusal jurisprudence, it is permissible for a judge to effectively commit himself as to how he will rule on a case, by giving his opinion on the legal issues involved. Any other rule would be absurd, because judges' past opinions are quite obviously a predictor of how they will rule in the future. The dissents of Breyer, O'Connor, Rehnquist and Kennedy in Apprendi v. New Jersey, for example, almost conclusively resolved how they would vote in Blakely v. Washington, which involved a claim based on Apprendi.

All a judge cannot do is commit himself to ruling a particular way on a particular case. To use a hypothetical example, Justice Thomas could, if he had wanted to, have given a speech saying "under the Constitution, the President has the power to detain indefinitely any individual he deems to be an enemy combatant". Such a statement would have absolutely determined how he would vote in the enemy combatant cases last year (e.g., Hamdi v. Rumsfeld), but it wouldn't have required his recusal unless he specifically referred to the case at hand.

To use an example of a real recusal, Justice Scalia disqualified himself from the Pledge of Allegiance case (Newdow) because, in a speech, he made specific reference to that individual case and expressed the view that the judgement of the court below was wrong. Newdow asked for, and achieved, his recusal on that ground; his "Suggestion for Recusal", whose reasoning Scalia evidently accepted, made this very distinction:

"The foregoing in no way suggests that a judge or justice, even in an extrajudicial setting, is prohibited from enunciating his views on legal matters. On the contrary, 'expressions of opinion on legal issues are not disqualifying'... However, Justice Scalia ... has already applied his Establishment Clause analysis to the case at bar and reached his conclusion before ever reading the briefs or hearing the arguments. That is what provides the grounds for recusal." (citation omitted; emphases added)

But as far as lack of impartiality is concerned, that goes far beyond judicial activism (however defined). "If Judge Q suddenly starts rendering very pro-big business rulings after being appointed to the board of some large corporation", the evidence is that he's far worse than a judicial activist. He's corrupt, plain and simple.

I wouldn't call Rehnquist a judicial activist; I would call him the most 'conser