# Are you rethinking Judicial activism? **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2021, 11:54pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357 "2021-06-15T23:54:44Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![SunUp](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SunUp](https://boards.straightdope.com/u/SunUp)\ **Post date:** [June 16, 2021, 2:01am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/41 "2021-06-16T02:01:41Z")
> [@Sam\_Stone](#): > > > [@](#): > > > > And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. OK, I can see this. But if you’re just picking 5-4 cases, you are by definition excluding those cases where the conservatives vote as a bloc but one or more of the liberals sides with them - in which case the voting would go at least 6-3. (In case the quoting is unclear, the “you’re” in the above is whoever wrote the article, not **Sam\_Stone** - but the basic principle still applies.) ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:03am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/42 "2021-06-16T02:03:19Z")
> [@Little\_Nemo](#): > > Which isn’t surprising because originalism pretty much guarantees judges will interject their own beliefs. A textualist will read the law and go by what the words say. An originalist will read the same law and then try to guess what the words mean. It’s not surprising that when they invent these meanings, they reflect their ideological beliefs. How else would somebody like Scalia be able to find a defense of corporate speech in the First Amendment - which was written in 1789. I can assure you that whatever James Madison’s original thoughts were, they didn’t include corporations any more than they including cable television or the internet. where is the right to privacy in the Constitution? ---
**Author:** ![HMS\_Irruncible](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hms_irruncible/32/7394_2.png) [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)\ **Post date:** [June 16, 2021, 2:08am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/43 "2021-06-16T02:08:10Z")
> [@oldoaktree](#): > > that is called the House of Representatives And that’s the point. We already have a legislative body. Abolish the Senate. Just get rid of it, or put it through a major overhaul. ---
**Author:** ![HMS\_Irruncible](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hms_irruncible/32/7394_2.png) [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)\ **Post date:** [June 16, 2021, 2:09am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/44 "2021-06-16T02:09:14Z")
> [@oldoaktree](#): > > where is the right to privacy in the Constitution? The Constitution doesn’t say we have a right to privacy. It also doesn’t say we have a right to vote. What’s your point? ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:09am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/45 "2021-06-16T02:09:17Z")
any of you trying to argue that Judicial Activism is a good thing, when it benefits your views, please explain why its not valid when it goes against your views. The Judiciary does not make law ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:13am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/46 "2021-06-16T02:13:41Z")
> [@HMS\_Irruncible](#): > > The Constitution doesn’t say we have a right to privacy. It also doesn’t say we have a right to vote. What’s your point? Democratically elected members of Congress should pass a law that we have a right to privacy, and that we have a right to vote. The democratically elected President should sign those laws into effect. that is my point ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 16, 2021, 2:18am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/47 "2021-06-16T02:18:30Z")
> [@oldoaktree](#): > > where is the right to privacy in the Constitution? There is no explicit right to privacy in the Constitution. But there’s also no explicit right to contract in the Constitution either. And conservative justices invoked the right to contract decades before liberals invoked the right to privacy. Judicial activism is not something liberals started. ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:22am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/48 "2021-06-16T02:22:49Z")
Fine, Liberals didn’t start it. Is Judicial Activism a good thing? ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:26am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/49 "2021-06-16T02:26:12Z")
> [@Little\_Nemo](#): > > But there’s also no explicit right to contract in the Constitution either. And conservative justices invoked the right to contract decades before liberals invoked the right to privacy. Judicial activism is not something liberals started. Liberals do it. Conservatives do it. Is Judicial Activism a good thing? ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [June 16, 2021, 2:27am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/50 "2021-06-16T02:27:36Z")
I’ll say it’s _generally_ bad. There may be exceptions, such as if a law is truly absurd or unjust (yet Constitutional). But it’s _mostly_ bad. ---
**Author:** ![Chingon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chingon/32/17645_2.png) [@Chingon](https://boards.straightdope.com/u/Chingon)\ **Post date:** [June 16, 2021, 2:34am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/51 "2021-06-16T02:34:58Z")
I assume you think liberals think it’s a good thing. Perhaps you can tell us your best guess as to why they think it’s a good thing. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 16, 2021, 2:35am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/52 "2021-06-16T02:35:40Z")
> [@oldoaktree](#): > > Is Judicial Activism a good thing? Generally, no. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [June 16, 2021, 2:38am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/53 "2021-06-16T02:38:33Z")
> [@Little\_Nemo](#): > > I’d argue that this is evidence of the exact opposite. If judges are reaching their decisions just by applying the law, they’re all working from the same source and you’d expect them to arrive at the same conclusions. If that’s the case, then wouldn’t you find conservative judges voting as a bloc more often? Or are you saying that the ‘conservative’ judges are not conservative but actually all over the map? I would interpret it this way: The ‘conservative’ judges try to follow the constitution, but they don’t always agree on the interpretation. John Roberta also seems to be protective of the court itself, and sometimes moves over to the ‘other side’ if he thinks a particular ruling would be damaging to the court itself, especially over contentious issues. That’s why he went over backwards to save Obamacare, much to the consternation of many Republicans. An intersting statistic to dig up would be how many times each judge voted to uphold laws passed by the party of the President that appointed them, or to strike down laws the opposing party passed. All that said, In researching this just now it’s pretty clear that the justices are a lot closer than most people think on most issues. The page linked below shows both the political leanings of the justices, and also how they have voted in general categories deemed political. And there’s a huge divergence between them. For example, Breyer, Stevens, Sotomayor and Kagan are all clustered together as liberal, and the conservative justices are almost equally clustered as conservative. And yet, when you look at their votes, they are often very close to each other. For example, on first amendment issues Stephen Breyer, a liberal justice, voted for the ‘liberal’ position 55.8% of the time, while John Roberts voted the ‘liberal’ side 50% of the time. Samuel Alito, rated the most conservative judge, voted the ‘liberal’ side 39% of the time, while Sonia Sotomayor, rated the most liberal judge, took the ‘conservative’ position 32.3% of the time. On federal taxes, all the justices vote the ‘liberal’ side more than 50% of the time, and surprisingly John Roberts and Samuel Alito have voted the ‘liberal’ side more often than Elena Kagen and Stephen Breyer. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 16, 2021, 2:38am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/54 "2021-06-16T02:38:40Z")
I’ve never been in favor of judicial activism, which is the judicial creation of law. (I’m a conservative by the way.) But we don’t “just now” have a conservative court, we’ve had a conservative court for at least 40 years or so. I also don’t define judicial activism as “any ruling that isn’t based solely in the plain text of the constitution.” The constitution was never intended to be interpreted as both textual and exhaustive, the court system was intended to incorporate analysis of precedent, legislative intent etc. The core tenet of textualism is supposed to be that if the plaintext of the constitution or a statute says something, the judge shouldn’t just interpret it to say something completely different. For example if the law says drive on the right side of the road, a judge can’t, without violating textualism, say that instead you can drive on the left side of the road. But if a law says “you have a legal obligation to drive your vehicle in a safe manner”, some analysis using precedent and legislative intent, is required to adjudicate specific cases. The constitution quite specifically says that no enumeration of rights in the constitution is intended to be exhaustive, nor is it intended to preclude other rights existing. So just because there is no black letter right in the constitution that says “you have a right to privacy” doesn’t necessarily mean it doesn’t exist, nor does it mean that just because there isn’t a black letter right to “property” that such a right doesn’t exist. There are provisions saying we can be secure in our papers, that our property cannot be taken without cause, which both are suggestive of a right to both privacy and property. The court was always intended to incorporate “established” rights, i.e. from things like the English Bill of Rights and other foundational principles of our government. With that in mind, Brown v. Board was not decided incorrectly, the 14th Amendment provides for equal treatment under the law, the court found that segregated schools provided equal access to public education based on race–this is in clear violation of the 14th Amendment. For what it is worth, on the topic of abortion I do believe that Roe was decided incorrectly. I also think Roe has caused significant social and political harm to the country ongoing to this day. ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:38am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/55 "2021-06-16T02:38:53Z")
Because they had a good run of liberal court decisions based on Judicial Activism. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 16, 2021, 2:39am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/56 "2021-06-16T02:39:49Z")
There has not been a liberal court really since the Warren court, so basically since the late 70s/early 80s or so when most of those liberal justices were gone. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [June 16, 2021, 2:44am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/57 "2021-06-16T02:44:12Z")
> [@oldoaktree](#): > > Democratically elected members of Congress should pass a law that we have a right to privacy, and that we have a right to vote. Logical nitpick: How can you have a democratically elected anyone before you have the right to vote? Or was that your point? More important point: The constitution does not say what the people can do. It places limits on what the government can do. You have right to privacy because the constitution doesn’t spell out a legal mechanism to take it away from you. > [@](#): > > “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” -10th amendment to the Constitution. Admittedly violated all the time by acts of judicial activism. (-: ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:44am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/58 "2021-06-16T02:44:57Z")
And my point is that Judicial Activism can work both ways. And it is undemocratic. And I’ve not really heard any argument against my viewpoint. Truth be told, i am all for reproductive rights, voting rights, etc. I just don’t like SCOTUS making those law ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 16, 2021, 2:45am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/59 "2021-06-16T02:45:37Z")
Yes but I would argue several things you’ve said in tis thread suggest you take a view of judicial activism in which you label lots of things judicial activism that are not, in fact, judicial activism, by most views of legal professionals, experts etc. ---
**Author:** ![oldoaktree](https://avatars.discourse-cdn.com/v4/letter/o/ccd318/32.png) [@oldoaktree](https://boards.straightdope.com/u/oldoaktree)\ **Post date:** [June 16, 2021, 2:48am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/60 "2021-06-16T02:48:52Z")
> [@Sam\_Stone](#): > > Logical nitpick: How can you have a democratically elected anyone before you have the right to vote? Or was that your point? We, as a society, should have decided that everyone gets to vote. We should have elected members of congress to pass a law that allowed everyone regardless race/gender. It is not up to Judges to decide that [Previous page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=2) [Next page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=4)