Monday, October 31, 2005

Michael: Will the real 'activist judges' please stand up?

Via New York Times

Who's the activist? The only quantifiable measure of a judges 'activism' is how often s/he invalidates a law duly passed by Congress. The resultant line up may or may not surprise you:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

Generally, those who are touted as 'conservative' judges who 'strictly apply the law', do not such thing. They legislate from the bench by second-guessing Congress almost half the time, or more. I would be interested to see (Sc)Alito's scores on such a test. I'm willing to bet that he will be at least as 'activist' as his role-model Scalia.

11 Comments:

At 3:53 PM, Blogger Kevin said...

That's funny. I thought part of the "checks and balances" function of the Judicial branch was to, you know, check the power of the Legislative branch? Not merely rubber-stamp its legislation. If Congress overreaches the powers delegated to it under the Constitution, the Courts are supposed to rein it in. This is to protect the rights of the minority against the power of majorities. As Justice Scalia (56.25%) has put it, "The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike."

"Activism" on the court, on the other hand, is inventing law - finding things in laws already written that were never intended. As 9th Circuit Judge Alex Kozinski put it, "build(ing) magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." Creating law is a power reserved to the legislative branch by the Constitution.

The Courts aren't empowered, for example, to tell the Massachusetts legislature that they must pass "gay marriage" legislation (not "civil union"), and set a deadline to do so.

Not that that stopped the Massachusetts Supreme Court.

You see, the SCoMA decided that the MA Constitution meant that "gay marriage" was required under law, even though it had never meant that before. No Massachusetts legislature had ever written a law that said that. No plurality of Massachusetts voters had ever voted on any law like that, but four of seven Justices sitting on the bench decided for everyone in Massachusetts what the law really meant, although the people who wrote and ratified that Constitution would have (I can say with some confidence) disagreed with that finding.

That is "judicial activism" - a tiny minority telling everyone else what is and isn't right - with essentially no legal recourse but the amendment process. It renders constitutions worthless, because tiny black-robed minorities get to decide what the law means on a day-to-day basis, and can change that meaning at any time.

Sorry, Michael, but you've got it exactly backwards. "Invalidating laws passed by Congress" isn't "judicial activism," it's the job description for the Judicial Branch.

Based on that understanding, I'd say that Thomas is the most on-the-ball Justice sitting on the Supreme Court today.

 
At 10:33 PM, Blogger shrimplate said...

If one is to take such quaint notions as equal protection under the law as seriously as the founders, then one must conclude that such was always meant by the law... converse to Kevin's assertion that it was "never" there in the law, at least regarding gay marriage.

Bigotry against gays has made many people blind to the injustice and unfairness so many gays have had to suffer for too long.

The bigoty of the founders is no excuse to continue it now.

Invalidating laws that discriminate would indeed be Scalia's job description, but he sucks at his job.

Thomas? On the ball? Too lazy. He doesn't even ask questions. He waits for Scalia to vote and then does likewise.

So what is it with gay marriage anyways? Why are you so afraid of it?

I'm not. Let a million gays marry, my spouse and I will still just be us. What's your problem with it? Why even bring it up? Your use of it as an example actually invalidates your point.

Funny, that.

 
At 11:20 PM, Blogger Michael said...

Yeah, that like conservatives believe that the Judiciary should "check" anything... just like the Sentate should "check" President's appointments by rubber stamping them.

Conservatives want the Judiary to be compliant when it suits their ends, and activist when that suits their ends. The spate of judicial activism among the conservative wing is quite simply and indication of the predominantly conservative judiary systematically disassembling the social and economic systems put into place by Congress in service to the ideology of 'originalism'.

No matter how the court operates, unless it is to be a completely prostrate and subsidiary branch, it is going to be 'activist'. That's the point. The Conservatives are more activist because they hold sway in the courts (judicial politics don't hinge only on Roe). They are working to enact a specific vision of American society and politics. The difference between Conservatives and Liberals is how honest they are about what they are doing and how well those goals align with the fundamental values of our Constitution. The judicial conservatives have demonstrated over and over that they are willing to lie and dissemble in order to reach their reactionary goals of entrenching inequality before the law, subjugating women, and suppressiing of the rights and opportunities of discrete and insular minorities, all the while clothing their intentions in the costume of fidelity to chimerical idea of 'original intent'.

"Judicial Activism" is itself a hypocritical hoax that serves to mask the reactionary activism of the Right. My point was to point out that if you seek any objective standard to measure this imaginary sin, the naughtiest judges are conservatives.

Of course, hobbled as we are by subjective preference for one vision of America or another, then, of course, you can always find evidence that the other guy is being an 'activist'. For example, gay marriage. You see a black robed cadre forcing their values on Americans. I see judges applying the highest and finest ideals of our Constitution, the legal equality of all citizens, and finding that our civil laws regarding marriage do not measure up to that high bar and must be changed. It is in every way analogous to Brown v. Topeka Board. We had run an institution of our civil government one way, an iniquitous and unequal way, for many years, and the courts finally ordered that the Constitution required business as usual to end. Lots of people resented such a call our highest ideals that required putting aside timeworn prejudices- apparently there is one such posting here.

 
At 7:41 AM, Blogger Kevin said...

Ah, Brown v. Board of Education! Doesn't that negate your entire post? SCOTUS "invalidate(d) laws passed by Congress" to accomplish their ends, no? Isn't that a bad thing, according to your "only quantifiable measure of a judges 'activism' "?

Let me get this straight: You advocate democracy as the finest and best form of government, but when the majority doesn't go along with your vision of what constitutes the "highest and finest ideals of our Constitution" - ideals that the people who wrote it and ratified it wouldn't have supported, ideals that the current majority of the population doesn't support - then it's A-OK for a few people in black robes to force it on everyone.

Because it matches your "vision of America."

But that's not "judicial tyranny."

Logical consistency isn't your strong suit, is it?

If you allow that power to the Judicial branch, power it was never granted under the Constitution, it can be used to do things you don't like as well. Or haven't you noticed?

From my perspective, Brown v. Board of Education was properly decided. The decision invalidated legislation that violated the intent of the 14th Amendment, and SCOTUS did its job correctly, overturning Cumming v. Richmond County Board of Education a case of "judicial activism" that violated the plain intent of the 14th Amendment for racist reasons.

 
At 12:13 PM, Blogger Michael said...

Just to put the record straight: Brown didn't overturn any federal legislation, it overturned state law.

And, no. You have consistently mistaken my point. You continue to be irony impaired. The point of the post is show that depending on how you slice it any judge can be accused of 'activism'. It is a meaningless catagory. I agree that one's view is entirely dependant on where you stand. That is why honesty and articulating the values you espouse and arguing for their alignment with the meaning and intent of the Constitution is the real test of judicial legitimacy.

The whole dodge that conservative judges are engaged in a different sort of enterprise from other judges is bullshit. That's the whole point of the NYT story, in case somebody didn't get that.

 
At 1:24 PM, Anonymous Terry said...

If a law is unconstitutional then it's the Supreme Court's job to overturn it.
For arguements sake if Congress passed 100 laws that are unconstitutional then the Supreme would, or should, overturn all 100 laws.
That is not activist that's their job.
Not hard to understand at all.

 
At 2:40 PM, Anonymous longrifleman said...

"That is why honesty and articulating the values you espouse and arguing for their alignment with the meaning and intent of the Constitution is the real test of judicial legitimacy."

So, are you arguing for originial intent as the only legitimate judicial position? If so then the last 70 years of leftist court decisions that completely ignore the CLEAR wording of the Constitution should make you angry. Somehow, I don't think that is your position.

This is my first visit to your site, so I may be mistaken.

I completely agree that the phrase "judicial activism" is almost meaningless as it is used today. I also think that the rating scale used is probably completely backwards. If SCOTUS is doing it's job, they will be overturning a lot of laws. If they are rubberstamping any piece of crap law, why waste the money to keep them going.

 
At 3:01 PM, Blogger Kevin said...

"The point of the post is show that depending on how you slice it any judge can be accused of 'activism'. It is a meaningless catagory."

In that case, we disagree still. "Activism" is pretty easily defined (but somewhat harder to illustrate - that "perspective" problem, again).

A judge is "activist" if (s)he decides a case A) in contravention of the understood meaning of the Constitution, or B) in contravention of precedent from higher courts that define those meanings. In cases that do not impinge on Constitutional law, "activism" is generally defined as "that which is unpopular with the majority." Specifically, "socially progressive" decisions.

It is the former activism that concerns me, mostly.

BTW, the Brown decision was your example, not mine.

Your statement:

"The judicial conservatives have demonstrated over and over that they are willing to lie and dissemble in order to reach their reactionary goals of entrenching inequality before the law, subjugating women, and suppressiing of the rights and opportunities of discrete and insular minorities, all the while clothing their intentions in the costume of fidelity to chimerical idea of 'original intent'."

I find fascinating. It isn't the job of the judiciary to "entrench inequality," nor subjugate women nor suppress the rights and opportunities of minorities. It's their job to interpret and uphold a system of laws. If you want to change those unfair conditions, your path is through legislation - but that legislation cannot violate the Constitution. If it is needed - woman's suffrage, abolition of slavery, equal rights for all citizens, etc. - there's an amendment process for that.

What you seem to be advocating is alteration of the Constitution through the actions of five Supreme Court justices, or even lower court judges. Again, that's a power they're not supposed to have, and if you allow them that power, then they can do things with it that you don't like, and you have no recourse, because any law you get passed they can just strike down.

And, again, putting all that power into the hands of five Supreme Court justices is hardly democratic, is it? But the amendment process, while difficult, IS. It's just slow, because you have to convince a supermajority of the need.

 
At 4:35 PM, Blogger Michael said...

"It's their job to interpret and uphold a system of laws. If you want to change those unfair conditions, your path is through legislation - but that legislation cannot violate the Constitution. If it is needed - woman's suffrage, abolition of slavery, equal rights for all citizens, etc. - there's an amendment process for that."

If only it were that easy. It is the very difficulty of amendment which has so often inspired the radicals of the Right Wing to try to pen laws that allow a supermajority of Congress to overturn court decisions or simply remove the courts' jurisdiction over the subject. There's a good reason why only a handful of the thousands of Constitutional Amendments have been passed. The real lubrication within our Constitutional design lies within the judiciary, not in amendment. Anything else would quickly create chaos in a fast paced society such as ours.

I don't argue for an 'originalist' reading of the Constitution because I don't think there is one. Obviously the first thing a judge does is look at plain meaning, but the Constition does really address things like stem cell use at a textual level. The only thing to guide a judge in such decisions are the core values and mechanisms of government described. If you you read the Constitution as establishing a secular government, you are likely to find nothing there allowing the government to establish regulations based on the theological dogma of a particular Christian sect, for instance.

Sure, the court could deny jurisdiction in such cases where there is no clear textual guidance, but that would kill the Courts as a useful institution. The court would no longer be a viable institution for building and refining the law, as courts have always been. Conservatives often say that Courts shall not legislate, but they have no choice but to react to overreach (as you rightly point out) or often to act to find a solution when the legislatures have not acted. It is a balancing act, to be sure, but like it or not, Congress is limited by the Constitution and it is the Court's role to define those limits and the courts' role (note the generic use of the term) is often to find solutions to problems using only analogy and good sense.

Conservatives on the Court use that power to serve the establishment. That is where most lawyers come from, whether Democrat or Republican, so its not surprising. They serve wealth, power, privilege by protecting and perpetuating it. I do term that entrenching 'entrenching inequality'. The entire history of law in this country is a protracted struggle between equality, freedom, and autonomy on one hand (the liberal one), and privilege, repression, and invasive government on the other. Conservatives have much more often been on the wrong, but winning, side of those competing visions of the Constitution.

I will concede that there is room for debate about which side has more merit in each and every discrete Constitutional case. There are always good arguements to keep things the same, but too often these days Conservatives want to go BACKWARD to some all too real and brutal gilded age. The problem is that in the view of too many Conservatives there are NO good or legitimate arguments on the liberal side of the coin. Being liberal and interpreting the Constitution consistent with the classically liberal ideals it embodies is demonized as 'activism', when it is really just a differing ideological viewpoint that is withing the mainstream of American politics, and is a healthy and vitalizing force in the development of our Constitution.

 
At 7:56 AM, Anonymous Rick C said...

Conservatives want the Judiary to be compliant when it suits their ends, and activist when that suits their ends

Uh, no. Life is risk. I would rather have judges interpret the Constitution in light of original intent and take my chances with some laws not being the way I would want them, than for courts at any and all levels to blithely rewrite the law of the land in unConstitutional ways.

Like gay marriage. There was never a place in the US where two men or women could get married. In fact, the idea of equal protection is in this case is being misapplied--gays have the exact same right I do regarding marriage.

Unrelated: Interestingly, Blogger refuses to allow the <blockquote> tag.

 
At 12:02 PM, Blogger Michael said...

Well maybe you don't personally Rick, but Conservative in general certainly do. Take for example sovreign immunity. It's not in the Constitution. Nowhere. Not only that, but it is a logically inconsistent doctrine, jumping in an out of existence as suits the subject and the desired results. Yet this chimerical and changling doctrine has been a favorite tool for activist Conservative judges to protect venerable unconstitutional state practices since before the civil war, and its role expanded greatly during the Rhenquist Court. Conservatives are just as willing to engage in so-called 'activism' when it suits their ends.

But don't believe me, ask the most Conservative Republican judge on the 9th Circuit, Noonan. Read his book "Narrowing the Nation's Power", for more on Conservative activism, and on soveriegn immunity in particular.

 

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