My favorite is the claim of conservative jurists that they vote to strike down legislation because the legislation was against the “original intent” of the Constitution.
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p>Funny, I don’t see “original intent” stated anywhere in the Constitution. Who exactly is “legislating from the bench?”
As a follow up on the posts over the last few days about the emptiness of the phrase “judicial activism”, I would urge those who are interested to read Keenan Kmiec’s article on the subject from 2004. It’s a thorough analysis of all the ways the term is used, and a history of its usage. At the end, he offers a list of all the various meanings assigned to it, a list that I think demonstrates that it has no coherent, agreed upon meaning and that, more importantly, it depends entirely on a whole host of other ideas upon which reasonable people differ. I’m going to list those meanings here and discuss each of them.
A. Striking Down Arguably Constitutional Actions of Other Branches
There are two major problems with this definition. The first is that it writes a presumption into the constitution that does not appear there, nor is there much support for it historically. I agree with Randy Barnett that a presumption of constitutionality is really the court abdicating its role in our government. And if you look at the Federalist papers, you will find no support for it. In Federalist 78, Hamilton argues that the Constitution establishes a Supreme Court “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” Not contrary to the literally interpreted text, or the expected application of the text, but merely contrary to the tenor, or spirit, of the constitution. Further, he argues that without the court performing such a duty, “all the reservations of particular rights or privileges would amount to nothing.”
The second major problem, as Kmiec notes, is that this definition depends upon one’s theory of interpretation and on how one thinks the constitution ought to be applied in a particular case
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B. Ignoring Precedent
My main problem with this definition is that it assumes a strong version of stare decisis that I simply don’t accept. I agree with Akhil Amar that such a view of precedenet requires “excessive deference to past decisions that themselves may have been misinterpretations of the law of the land.” Where prior court rulings are clearly wrong – and some of them are – they should be overturned.
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C. Judicial Legislation
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The main problem with this definition is that no one ever provides any clear criteria to determine when a judge is interpreting the requirements of the constitution and when they’re “legislating from the bench.” The other problem is that statutory interpretation often requires that judges fill in the details of vague laws.
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The other problem, as I argued previously, is that the very same people who claim to object to “judge made law” tend to be big fans of the English common law… …But the common law was largely judge-made law (it was also a foreign source of law, ironically).
D. Departures from Accepted Interpretive Methodology
I actually think this one comes closest to being an objective and coherent definition for judicial activism, but only if modified slightly. I think one can make a coherent argument that a judge is substituting his preferred outcome for sound interpretation when he departs from his own stated theory of interpretation when the application of that interpretive modality would result in an outcome he doesn’t like.
Ed goes on to mention a couple of obvious examples of the above, but the one that immediately came to my mind was Bush v. Gore, where all the “state’s rights” and federalist leaning peoples on the court conveniently forgot these principals.
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p>Continuing:
E. Result-Oriented Judging
…In other words, a decision is “activist” only when (a) the judge has an ulterior motive for making the ruling; and (b) the decision departs from some “baseline” of correctness. How “activist” the decision is depends on how far it deviates from this baseline.
The difficulty, of course, is that people are far more likely to presume an ulterior motive by those who disagree with them the most, while giving the benefit of the doubt to those rulings they agree with or those judges they tend to agree with overall. Thus, “judicial activism” merely becomes a placeholder for “I think this ruling is wrong.”
christophersays
…that burden of proof should rest with the party challenging constitutionality. As for activism, when someone complains I usually cite Brown v. Board of Ed. Objectively, it was quite activist for the SC to mandate integration when they could have just reaffirmed Plessy V. Ferguson, but insisted the each district allocate per pupil expenditures equally. They recognized this wouldn’t work in the real world and took the more “activist” approach. Does anyone today argue the case was wrongly decided? I submit that since the SC is not allowed to initiate cases they are prevented from being truly activist.
The fact that the USSC does not initiate cases presents no structural bar to its being “activist.” There are thousands and thousands of cases swimming around in the federal court system, including about 10,000 that come to the Supreme Court each year. The Court can reach out and grab just about any one it wants to make a point.
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p>And I think there’s no doubt that Brown, along with a number of other very important cases (Baker v. Carr, as just one example), were “activist.” Doesn’t mean they were wrong. That’s why it’s such a useless construct.
bean-in-the-burbssays
I of course love this post.
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p>To be fair, though, isn’t the trend simply reflective of the fact that the conservatives are in the majority on the court? The more liberal court members might have issued decisions overturning legislation more often, and the conservatives less often, if the liberals held a majority on the Court?
kbuschsays
This study represents votes not decisions. I don’t believe that the filter over what cases the Court accepts plays a role either as members of the minority can get cases accepted.
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p>Instead, I wouldn’t be surprised if it doesn’t represent the Court’s constant chipping away at measures designed to reduce racial discrimination and to separate Church and State.
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p>With the Roberts Court, we might begin to see Conservatives rolling back the federal power to regulate.
That is true — it takes only 4 votes to grant full review. But Justices cast those votes strategically, and they may not vote to grant review in an otherwise worthy case if they believe that they won’t have the votes to get what they think is the right result. So the overall ideological composition of the Court does affect what cases are heard.
christophersays
…is the one that says how dare judges “legislate from the bench”. Case law is as valid as statute law, though the former should ideally be governed by the latter (or the Constitution if that is in play). People need to realize that in a republic like ours, some elements are democratic and others not so much, but the branches all derive their authority from the same Constitution with equal legitimacy.
power-wheelssays
Is overturning the will of the people as represented through their federal legislators different than overturning the will of the people as represented by their state legislators? This study picks federal legislation but ignores state legislation. I can’t find that analysis anywhere, but I would think that those numbers would shift if the study looked at a justice’s inclination to overturn state legislation.
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p>But more generally, I think the activist label comes largely from the abortion debate. There is no right to privacy in the text of the constitution (only in the emanations from the penumbras), and ‘substantive due process’ is an oxymoron, a contradiction in terms. The fact that some judges read a right to privacy into the constitution and then interpret that invented right to include a right to have an abortion in the first trimester of pregnancy is ‘activist’ in that it takes away from the people (on the state and federal level) the right to have a democratic voice in one of the most controversial issues in this country. The abortion debate is relegated to proxy wars over parental consent and protest buffer zones because the Supreme Court has removed the public from the underlying debate based on an invented right. I thinkbtgats where the charges of ‘activism’ and ‘legislating from the bench’ come from.
My favorite is the claim of conservative jurists that they vote to strike down legislation because the legislation was against the “original intent” of the Constitution.
<
p>Funny, I don’t see “original intent” stated anywhere in the Constitution. Who exactly is “legislating from the bench?”
… with the ‘activist judge’ label here:
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p>
Ed goes on to mention a couple of obvious examples of the above, but the one that immediately came to my mind was Bush v. Gore, where all the “state’s rights” and federalist leaning peoples on the court conveniently forgot these principals.
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p>Continuing:
…that burden of proof should rest with the party challenging constitutionality. As for activism, when someone complains I usually cite Brown v. Board of Ed. Objectively, it was quite activist for the SC to mandate integration when they could have just reaffirmed Plessy V. Ferguson, but insisted the each district allocate per pupil expenditures equally. They recognized this wouldn’t work in the real world and took the more “activist” approach. Does anyone today argue the case was wrongly decided? I submit that since the SC is not allowed to initiate cases they are prevented from being truly activist.
The fact that the USSC does not initiate cases presents no structural bar to its being “activist.” There are thousands and thousands of cases swimming around in the federal court system, including about 10,000 that come to the Supreme Court each year. The Court can reach out and grab just about any one it wants to make a point.
<
p>And I think there’s no doubt that Brown, along with a number of other very important cases (Baker v. Carr, as just one example), were “activist.” Doesn’t mean they were wrong. That’s why it’s such a useless construct.
I of course love this post.
<
p>To be fair, though, isn’t the trend simply reflective of the fact that the conservatives are in the majority on the court? The more liberal court members might have issued decisions overturning legislation more often, and the conservatives less often, if the liberals held a majority on the Court?
This study represents votes not decisions. I don’t believe that the filter over what cases the Court accepts plays a role either as members of the minority can get cases accepted.
<
p>Instead, I wouldn’t be surprised if it doesn’t represent the Court’s constant chipping away at measures designed to reduce racial discrimination and to separate Church and State.
<
p>With the Roberts Court, we might begin to see Conservatives rolling back the federal power to regulate.
That is true — it takes only 4 votes to grant full review. But Justices cast those votes strategically, and they may not vote to grant review in an otherwise worthy case if they believe that they won’t have the votes to get what they think is the right result. So the overall ideological composition of the Court does affect what cases are heard.
…is the one that says how dare judges “legislate from the bench”. Case law is as valid as statute law, though the former should ideally be governed by the latter (or the Constitution if that is in play). People need to realize that in a republic like ours, some elements are democratic and others not so much, but the branches all derive their authority from the same Constitution with equal legitimacy.
Is overturning the will of the people as represented through their federal legislators different than overturning the will of the people as represented by their state legislators? This study picks federal legislation but ignores state legislation. I can’t find that analysis anywhere, but I would think that those numbers would shift if the study looked at a justice’s inclination to overturn state legislation.
<
p>But more generally, I think the activist label comes largely from the abortion debate. There is no right to privacy in the text of the constitution (only in the emanations from the penumbras), and ‘substantive due process’ is an oxymoron, a contradiction in terms. The fact that some judges read a right to privacy into the constitution and then interpret that invented right to include a right to have an abortion in the first trimester of pregnancy is ‘activist’ in that it takes away from the people (on the state and federal level) the right to have a democratic voice in one of the most controversial issues in this country. The abortion debate is relegated to proxy wars over parental consent and protest buffer zones because the Supreme Court has removed the public from the underlying debate based on an invented right. I thinkbtgats where the charges of ‘activism’ and ‘legislating from the bench’ come from.