Judicial Activism.

[WilliamJB]

I find it funny that the GOP, Tea Partiers, etc. seem to have a new-found fondness for their long-derided "judicial activism" when it comes to the new healthcare bill. Let's challenge it in the courts!

Agree? Disagree?

 

[Groucho]

I find it funny that the GOP, Tea Partiers, etc. seem to have a new-found fondness for their long-derided "judicial activism" when it comes to the new healthcare bill. Let's challenge it in the courts!

Agree? Disagree?

We've had this discussion before.

People who cry "judicial activism" only see it when the judges do something they disagree with. Bush v. Gore is perhaps the most egregious example in recent history, but most conservatives refuse to see it as such. (Although many conservative legal scholars certainly acknowledge that it was.)

 

[WilliamJB]

True, true. I was hoping for a conservative justification for this (or, at least a clumsy attempt at jusitification).

Speaking of legal scholars, Segal and Spaeth (2002) use Bush v. Gore in a very entertaining way, if you're familiar with their work.

 

[Chuz Life]

I find it funny that the GOP, Tea Partiers, etc. seem to have a new-found fondness for their long-derided "judicial activism" when it comes to the new healthcare bill. Let's challenge it in the courts!

Agree? Disagree?

Speaking only for myself,... but I think that every law or policy posed by our government should be weighed against the Constitution. It's obvious the Constitution is not always the first thing on our elected officals minds when they make proposals that are often times "extra"- Constitutional.

But it always should be the first thing they consider. After all,... they took an oath to uphold the damn thing.

Didn't they?

 

[WilliamJB]

Speaking only for myself,... but I think that every law or policy posed by our government should be weighed against the Constitution. It's obvious the Constitution is not always the first thing on our elected officals minds when they make proposals that are often times "extra"- Constitutional.

But it always should be the first thing they consider. After all,... they took an oath to uphold the damn thing.

Didn't they?

That's fine, but why does it only run one way? When it's a liberal law being challenged, it's about the constitution. When it's a conservative law, it's those damn activist judges imposing their will on the majority.

 

[Chuz Life]

That's fine, but why does it only run one way? When it's a liberal law being challenged, it's about the constitution. When it's a conservative law, it's those damn activist judges imposing their will on the majority.

Like I said,... if someone doesn't think the law is Constitutional from either side,... they have more than a right to challenge it. I would say they have the responsibility to do so.

That doesn't mean they will always be validated with a win in the courts, btw. But it's certainly their right to try.

 

[WilliamJB]

Like I said,... if someone doesn't think the law is Constitutional from either side,... they have more than a right to challenge it. I would say they have the responsibility to do so.

That doesn't mean they will always be validated with a win in the courts, btw. But it's certainly their right to try.

Cool. Does that mean the next time the ACLU challenges a school prayer law for violating the constitution, conservatives will offer their full support?

 

[Goshin]

I find it funny that the GOP, Tea Partiers, etc. seem to have a new-found fondness for their long-derided "judicial activism" when it comes to the new healthcare bill. Let's challenge it in the courts!

Agree? Disagree?

Ah, another hyperpartisan newbie. Just what we needed, we have a drastic shortage of hyperpartisanship you know.

 

[Chuz Life]

Cool. Does that mean the next time the ACLU challenges a school prayer law for violating the constitution, conservatives will offer their full support?

No.

Why should we?

We don't see that you would have a case in the way that you see it.

Neither would I expect YOUR 'full support' when a Conservative challenges a law.

But all that is besides the point that all sides should be keeping all laws in check with the Constitution,... from each their own perspective or interpretation if you will.

In my view,.. This is precisely what makes Supreme Court appointees so important.

 

[WilliamJB]

No.

Why should we?

We don't see that you would have a case in the way that you see it.

Neither would I expect YOUR 'full support' when a Conservative challenges a law.

But all that is besides the point that all sides should be keeping all laws in check with the Constitution,... from each their own perspective or interpretation if you will.

In my view,.. This is precisely what makes Supreme Court appointees so important.

Fair point. Let me clarify. If a court were to rule that school prayer violated the 1st Amendment, those on the right would decry this as judicial activism that threatened the power of the democratically elected legislature by unelected judges.

If the same court struck down the healthcare bill, it would be hailed as a victory in defense of the constitution.

I guess what I'm saying is, we should all just admit that judges make policy, and that this is a valid exercise. There's no such thing as a "strict constructionist," as Scalia would have us believe. Just liberal judges striking down conservative laws, and conservative judges striking down liberal laws.

 

[Chuz Life]

Fair point. Let me clarify. If a court were to rule that school prayer violated the 1st Amendment, those on the right would decry this as judicial activism that threatened the power of the democratically elected legislature by unelected judges.

If the same court struck down the healthcare bill, it would be hailed as a victory in defense of the constitution.

I guess what I'm saying is, we should all just admit that judges make policy, and that this is a valid exercise. There's no such thing as a "strict constructionist," as Scalia would have us believe. Just liberal judges striking down conservative laws, and conservative judges striking down liberal laws.

The judges making policy is a completely different animal from the judges ruling (weighing the Constitutionality) of a policy made by someone else.

agree?

 

[WilliamJB]

The judges making policy is a completely different animal from the judges ruling (weighing the Constitutionality) of a policy made by someone else.

agree?

They make policy in the sense that they determine, in many instances, what policy will be. Roe made policy in the sense that it made it the policy of every state that abortions were legal (up to a certain point). Citizens United v. FEC made it the policy that corporations could spend as much as they wanted on elections. All judicial decisions have policy consequences.

If you're interested, I recommend picking up a copy of "The Supreme Court and the Attitudinal Model" by Jeffrey Segal and Harold Spaeth.

 

[Chuz Life]

They make policy in the sense that they determine, in many instances, what policy will be. Roe made policy in the sense that it made it the policy of every state that abortions were legal (up to a certain point). Citizens United v. FEC made it the policy that corporations could spend as much as they wanted on elections. All judicial decisions have policy consequences.

If you're interested, I recommend picking up a copy of "The Supreme Court and the Attitudinal Model" by Jeffrey Segal and Harold Spaeth.

Thanks for the suggestion but I already get it.

We are saying the same thing in different ways with slightly different emphasis.

I think we both agree that the Constitution is the final say and the system may not be perfect,... but until we can make it better we have to make due with what we have.

 

[WilliamJB]

Thanks for the suggestion but I already get it.

We are saying the same thing in different ways with slightly different emphasis.

I think we both agree that the Constitution is the final say and the system may not be perfect,... but until we can make it better we have to make due with what we have.

I suppose we are. I guess I just want to emphasize that "activism" is a two-way street, and there is some resentment on the part of liberals such as myself that the term seems disproportionately applied to "our" judges.

 

[Chuz Life]

I suppose we are. I guess I just want to emphasize that "activism" is a two-way street, and there is some resentment on the part of liberals such as myself that the term seems disproportionately applied to "our" judges.

As the courts makeup changes,.. so will that very charge.

It looks like you are trying to overthink it on the basis (ideal) of what should and shouldn't be,... I think along those lines too.. But I try to snap myself out of it and just deal with the reality of the fact that not all arguments are as simple as others,... and that sooner or later (maybe even not in my lifetime) the greater arguments will prevail,... so long as we are all determined to see that they do.

 

[Goshin]

I find it funny that the GOP, Tea Partiers, etc. seem to have a new-found fondness for their long-derided "judicial activism" when it comes to the new healthcare bill. Let's challenge it in the courts!

Agree? Disagree?

Judicial activism, in its most disagreeable form, occurs when judges "legislate from the bench" (creating new policy out of thin air) rather than ruling on a specific case using existing law and the Constitution.

In the matter you are referencing, the court is being asked to rule on whether this bill, or some aspects of it, are actually within the bounds of Constitutionality. This is the right and proper method of conducting such a challenge. Assuming the court rules only on the manner in which the Constitution does or does not allow for the policy in question, this isn't judicial-activism as such.

 

[WilliamJB]

Judicial activism, in its most disagreeable form, occurs when judges "legislate from the bench" (creating new policy out of thin air) rather than ruling on a specific case using existing law and the Constitution.

In the matter you are referencing, the court is being asked to rule on whether this bill, or some aspects of it, are actually within the bounds of Constitutionality. This is the right and proper method of conducting such a challenge. Assuming the court rules only on the manner in which the Constitution does or does not allow for the policy in question, this isn't judicial-activism as such.

1. I'd be cusious about which specific cases you think were "legislated from the bench," and which were a proper application of the constitution.

2. What the constitution "does or does not allow" is extremely subjective. What counts as "Necessary and Proper"? "Equal Protection"? "Due Process"? Does the 1st Amendment's clause that "Congress shall pass no law respecting an establishment of religion" simply mean they can't make a law stating that the "official" religion of the US is "x," or does it mean the government can't promote religion in any way? Reasonable arguments could be made for either definition.

 

[Goshin]

1. I'd be cusious about which specific cases you think were "legislated from the bench," and which were a proper application of the constitution.

2. What the constitution "does or does not allow" is extremely subjective. What counts as "Necessary and Proper"? "Equal Protection"? "Due Process"? Does the 1st Amendment's clause that "Congress shall pass no law respecting an establishment of religion" simply mean they can't make a law stating that the "official" religion of the US is "x," or does it mean the government can't promote religion in any way? Reasonable arguments could be made for either definition.

1. Roe v Wade. I think that whether you are pro- or anti-, a careful reading of that decision reveals that it is a horrible piece of judicial quackery. First, it was decided that a right to privacy was implied by the Constitution... okay, maybe that isn't unreasonable itself, but then that right to privacy was extended like a rubber band pulled to the limit to say that society had no intrest in what took place between a woman and her doctor, even if in the process what was arguably a human life was terminated. Bad law.
An even worse example was when a state supreme court (Mass? RI? I forget) decided somehow that their state constitution DEMANDED a law allowing homosexual marriage, even though their State Const did not contain the words "homosexual marriage" and then told the legislature that they had X days to pass a new bill that made homosexual marriage legal. This was one of the most blatant cases of legislating from the bench that I recall.


2. This is why we have a SCOTUS, but we also need to be aware that the SCOTUS is not a holy priesthood and is susceptible to politics. There are also other methods by which Constitutionality may be addressed, including the legislature's power to remove certain items from the purview of the SCOTUS. Yes it is a complicated issue, but that does not mean that an appeal to a judgement on the Constitutionality of a new law is somehow invalid... indeed it is necessary to maintaining a limited government, whose limitations are specified in the Constitution.

 

[WilliamJB]

1. Roe v Wade. I think that whether you are pro- or anti-, a careful reading of that decision reveals that it is a horrible piece of judicial quackery. First, it was decided that a right to privacy was implied by the Constitution... okay, maybe that isn't unreasonable itself, but then that right to privacy was extended like a rubber band pulled to the limit to say that society had no intrest in what took place between a woman and her doctor, even if in the process what was arguably a human life was terminated. Bad law.
An even worse example was when a state supreme court (Mass? RI? I forget) decided somehow that their state constitution DEMANDED a law allowing homosexual marriage, even though their State Const did not contain the words "homosexual marriage" and then told the legislature that they had X days to pass a new bill that made homosexual marriage legal. This was one of the most blatant cases of legislating from the bench that I recall.


Hm. Two liberal decisions. Interesting.
It was MA, by the way.
And the state constitution did contain the concept of equal protection, which, well, I think you know where I'm going with this...

Believe it or not, I acutally partially agree with you on Roe. The logic was a little tortured. The question really revolved around whether a fetus is a life (obviously). All Blackmun said was that scientists and philosophers have struggled with this for centuries, and the Court was in no position to resolve it either way. It was up to the conscience of the individual woman. Seems like the protection of freedom to me.

2. This is why we have a SCOTUS, but we also need to be aware that the SCOTUS is not a holy priesthood and is susceptible to politics. There are also other methods by which Constitutionality may be addressed, including the legislature's power to remove certain items from the purview of the SCOTUS. Yes it is a complicated issue, but that does not mean that an appeal to a judgement on the Constitutionality of a new law is somehow invalid... indeed it is necessary to maintaining a limited government, whose limitations are specified in the Constitution.

Again, surprisingly, I actually agree with you here too. I just think we need to admit that the SCOTUS is as much a political institution as any other, and stop pretending that "strict constructionism" is possible.
I'm a little suspicious of legislatures removing certain issues from the court's jurisdiction. The judiciary is supposed to serve as a check on abuse of the minority by the majority. This would clearly threaten that role.

 

[Dezaad]

We've had this discussion before.

People who cry "judicial activism" only see it when the judges do something they disagree with. Bush v. Gore is perhaps the most egregious example in recent history, but most conservatives refuse to see it as such. (Although many conservative legal scholars certainly acknowledge that it was.)

It was egregious because it cannot be defended under ANY jurisprudence in use by the Supremes at that time (and not now either). Not originalism, not strict constructionism, and not living document.

It was a bald faced partisan ruling which greatly diminished my respect for the conservative justices. It showed that they don't even have enough respect for the Constitution, our Republic, and the people, to apply a consistent jurisprudence to the document that is the FOCUS of their whole careers. It makes me sick, still, to remember it.

In my book, that is the very description of judicial activism: Inconsistent jurisprudence.

 

[Chuz Life]

It was egregious because it cannot be defended under ANY jurisprudence in use by the Supremes at that time (and not now either). Not originalism, not strict constructionism, and not living document.

It was a bald faced partisan ruling which greatly diminished my respect for the conservative justices. It showed that they don't even have enough respect for the Constitution, our Republic, and the people, to apply a consistent jurisprudence to the document that is the FOCUS of their whole careers. It makes me sick, still, to remember it.

In my book, that is the very description of judicial activism: Inconsistent jurisprudence.

So many like to use that ruling for political leverage and like tocry their outrage over the ruling,... but the fact is Gore conceded. And the people didn't riot in the streets or demand impeachment of the courts justices or anything of the sort.


Facts;

Bush v. Gore, U.S. Supreme Court Case Summary & Oral Argument


[nomedia="http://www.youtube.com/watch?v=GyKlcQ_HiD4"]YouTube- Al Gore concedes presidential election of 2000[/nomedia]

 

[Dezaad]

So many like to use that ruling for political leverage and like tocry their outrage over the ruling,... but the fact is Gore conceded. And the people didn't riot in the streets or demand impeachment of the courts justices or anything of the sort.


Facts;

Bush v. Gore, U.S. Supreme Court Case Summary & Oral Argument


YouTube- Al Gore concedes presidential election of 2000

What, precisely, does Gore's concession have to do with the twisted legal reasoning that went into the ruling?

 

[Chuz Life]

What, precisely, does Gore's concession have to do with the twisted legal reasoning that went into the ruling?

I can't get myself any more riled up than the candiudates involved.

Also, after reading the facts of the case,.. it's clear to me that the court did the right (Constitutionally speaking) thing.

 

[WilliamJB]

I can't get myself any more riled up than the candiudates involved.

Also, after reading the facts of the case,.. it's clear to me that the court did the right (Constitutionally speaking) thing.

What Dezaad is, I believe rightly, pointing out, is that it is the height of hypocracy when justices like Scalia and Thomas build a career on "states' rights," then throw all of that out the window when it means they get to choose the president. It was a complete reversal of the way they had ruled on virtually every other similar case.

Also, if you're going to argue that a right to privacy is a stretch constitutionally speaking, then certainly using the equal protection clause to had Bush an election is at least in the same ball park.

According to Jeffrey Toobin's book, David Souter actually wept after the decision he was so concerned about what the Court was doing.

 

[Chuz Life]

What Dezaad is, I believe rightly, pointing out, is that it is the height of hypocracy when justices like Scalia and Thomas build a career on "states' rights," then throw all of that out the window when it means they get to choose the president. It was a complete reversal of the way they had ruled on virtually every other similar case.

Also, if you're going to argue that a right to privacy is a stretch constitutionally speaking, then certainly using the equal protection clause to had Bush an election is at least in the same ball park.

According to Jeffrey Toobin's book, David Souter actually wept after the decision he was so concerned about what the Court was doing.

The point is they didn't chuz the president.

They chose to not let Florida change the rules and the way ballots are tallied ex-post-facto.

That's a big difference.