# 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:** 5
**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, 3:59am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/81 "2021-06-16T03:59:38Z")
Joe Biden is the democratically elected president of the United States. Putin and Xi are dictators. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 16, 2021, 4:01am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/82 "2021-06-16T04:01:14Z")
OK? I don’t think any of them should have the unilateral power to end human life as we know it. But they do. And there’s basically no feasible alternative. ---
**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, 4:04am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/83 "2021-06-16T04:04:47Z")
OK?? Judicial Activism is ok because the Chinese Communist Party and Vladimir Putin are somehow involved. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 16, 2021, 4:08am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/84 "2021-06-16T04:08:45Z")
No, it’s OK because it’s the natural result of political incentives and societal attitudes that aren’t going to magically change, and one side unilaterally disengaging doesn’t fix the problem. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 4:09am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/85 "2021-06-16T04:09:41Z")
> [@oldoaktree](#): > > why should they have that power? Checks and balances. The legislature has the power to make laws, the executive has the power to carry out laws, and the judiciary has the power to evaluate laws for consistency with their underlying framework of rights. Rights aren’t created by laws: rights are the fundamental concepts that determine what laws are and are not allowed to do. Yes, that means that the whole notion of rights is somewhat vague and messy, but there isn’t really any other workable basis for jurisprudence in a constitutional democracy. ---
**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, 4:16am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/86 "2021-06-16T04:16:42Z")
i agree and am well aware of the notion of checks and balances. what nobody seems to want to address is that SCOTUS is now majority conservative. And thus, Conservative Judicial Activism might occur. Please address this. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 4:32am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/87 "2021-06-16T04:32:22Z")
> [@oldoaktree](#): > > what nobody seems to want to address is that SCOTUS is now majority conservative. And thus, Conservative Judicial Activism might occur. What do you mean, nobody’s been addressing this? Here’s Velocity on that very subject back in post #4, for example: > [@Velocity](#): > > But more often than not, when I saw Republicans and conservatives complaining about liberal judicial activism, these were people who would have been absolutely thrilled if the courts had forcefully played judicial-activist for the causes they supported. Post #11: > [@HMS\_Irruncible](#): > > It’s foolishness for every state to have 2 Senators […] This is where the real undemocratic abuse of power is happening, and that’s why the Court is becoming an ideological rubber stamp. Post #30: > [@Little\_Nemo](#): > > Let’s not perpetuate the story that it was Earl Warren and the liberals who invented judicial activism. Post #38: > [@Sam\_Stone](#): > > You can clearly find judicial activism on both sides if you go through American history. “Judicial activism” is just a boogeyman word, like “socialism”, that doesn’t mean anything in particular unless we’re willing to specify what we think it entails in practical terms. The fact that you seem unwilling or unable to do that, but just keep invoking the phrase “judicial activism” without defining it, is what’s leading other posters to suspect that you don’t actually know what you mean by it. ---
**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, 4:36am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/88 "2021-06-16T04:36:30Z")
Cite? That “Judicial Activism” is a boogeyman word ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 4:42am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/89 "2021-06-16T04:42:54Z")
Oh, that’s an opinion: sorry if I inadvertently gave you the mistaken impression that there is some kind of official register of “boogeyman words” on which a particular term can be objectively determined to be listed or not. However, my opinion that the term “judicial activism” is frequently used as a boogeyman word, to convey vaguely negative connotations without a meaningful argument, is reinforced by the way you’ve been using the term in this thread. As other posters such as Martin\_Hyde have already asked you more than once in this thread: what, specifically, do you consider constitutes “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, 4:46am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/90 "2021-06-16T04:46:55Z")
> [@Kimstu](#): > > what, specifically, do you consider constitutes “judicial activism”? Making up laws by the Judiciary which have not been passed by the legislature. ---
**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, 4:53am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/91 "2021-06-16T04:53:15Z")
Laws are statutes signed and passed by Congress, or in the states, the state legislatures. There has never been a law “made up” by the Judiciary. Could you perhaps explain more specifically what you believe Judicial Activism is? Point to a specific scenario that happened in the real world. ---
**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, 4:54am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/92 "2021-06-16T04:54:52Z")
Miranda ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 4:58am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/93 "2021-06-16T04:58:32Z")
Obviously (well, I hope), you know that the judiciary doesn’t actually make laws, and that court decisions are not called laws or treated as laws. [Ninja’d by Martin\_Hyde!] What they are is the court’s ruling about what laws mean, and what laws are permissible in accordance with constitutional principles. So they necessarily involve judges interpreting and evaluating laws. Where, in that process of judicial interpretation and evaluation of laws, are you drawing the line between “judicial activism” and “not judicial activism”? > [@oldoaktree](#): > > Miranda You think it’s not a legitimate judicial decision that suspects have the right to be explicitly informed of their constitutional rights under questioning by law enforcement? What is it about that ruling that you think is inappropriately “activist”? ---
**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, 5:05am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/94 "2021-06-16T05:05:24Z")
> [@Kimstu](#): > > You think it’s not a legitimate judicial decision that suspects have the right to be explicitly informed of their constitutional rights under questioning by law enforcement? What is it about that ruling that you think is inappropriately “activist”? Congress did not pass a law saying so. The Court decided that. That is Judicial Activism. We can agree that suspects have the right to be explicitly informed of their constitutional rights under questioning by law enforcement. But who decides that? A democratically elected legislature or the Judiciary? ---
**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, 5:11am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/95 "2021-06-16T05:11:23Z")
I think there is actually a decent argument to be made that Miranda was judicial activism. I do note, that you picked a case from the Warren Court, I had specifically mentioned we have not actually had a liberal court since the time of the Warren Court. One of the premises of your post that I don’t agree with is that “now we have a conservative court”, that “now” part suggests this is a new occurrence. There has been a conservative majority for something like 40 years. I’d have to pull some data on which Justice retired when to know for sure how far back, but it’s been decades. Clinton had a majority Republican Supreme Court his entire term, if Gore had won, the court would have swung to majority Democrat appointees, but instead Bush won. Obama only got to confirm two judges in 8 years, and then Trump got to nominate 3 in 4 years. Some of that was for political reasons and some was just bad luck (Rehnquist for example was very sickly even during Clinton’s term, and was basically incapacitated for a couple years at the end, had he died at age 75 instead of 80 we’d have likely had a Democrat Chief Justice who would still be serving today.) Basically because starting with Nixon we had 8 years of Republican Presidents–Nixon got 4 justices on and Ford 1 (so 5 in 8 years.) We then had Carter for four years, he got 0 nominees (due to no one dying or retiring.) Then we had a 12 year run of Reagan/Bush. Reagan got 3, Bush got 2. Then we had 8 years of Bill Clinton–note that in the early run of Clinton’s Presidency we had the most Republican court that we’d had in decades, that same court upheld Roe in Casey. But I digress, Clinton only got 2 justices in 8 years. Then we had Bush, who got 2 in 8, Obama who got 2 in 8, and Trump who got 3 in 4. So going back to 1969 we’ve had 32 years of Republican Presidencies, and 20 years of Democrat Presidencies. In those spans of time, Republicans have seated 15 Justices and Democrats 4. The emergence of a conservative court is being presented as “new thing” liberals have to consider, it isn’t. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 5:11am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/96 "2021-06-16T05:11:28Z")
> [@oldoaktree](#): > > Congress did not pass a law saying so. The Court decided that. That is Judicial Activism. But by that reasoning, and I use the term loosely, everything that the Court does would qualify as “judicial activism”. Court decisions are a form of “meta-law”: their whole essential purpose is to state which laws and/or interpretations of laws are constitutionally permissible, or required. Can you name a Supreme Court decision that you think is not “judicial activism”? And if so, can you explain what you think differentiates it from the Miranda ruling in that regard? > [@oldoaktree](#): > > But who decides that? A democratically elected legislature or the Judiciary? The legislature is not in charge of deciding what rights exist or whether laws are consistent with rights, remember? That’s the judiciary’s job. ---
**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, 5:13am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/97 "2021-06-16T05:13:41Z")
> [@Kimstu](#): > > That’s the judiciary’s job. Fundamental difference between us. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 5:14am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/98 "2021-06-16T05:14:05Z")
> [@Martin\_Hyde](#): > > I think there is actually a decent argument to be made that Miranda was judicial activism I am fairly confidently hoping that you have a more meaningful criterion than oldoaktree seems to have for explaining why Miranda meets a definition for “judicial activism” that other Court decisions don’t, and that you’ll explain it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 16, 2021, 5:17am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/99 "2021-06-16T05:17:43Z")
> [@Kimstu](#): > > You think it’s not a legitimate judicial decision that suspects have the right to be explicitly informed of their constitutional rights under questioning by law enforcement? What is it about that ruling that you think is inappropriately “activist”? It isn’t because what it is based upon? The Constitution says that you have a right not to be a witness against yourself, a right to an attorney at trial, etc. but where does the Court get the idea that the police must affirmatively inform you of those rights? It’s just not there. That is judicial activism. As @oldoaktree said, maybe that’s one swell idea that we should do that. If so, Congress or the states can pass such a law, but it simply is not there in the text or the history. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [June 16, 2021, 5:17am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/100 "2021-06-16T05:17:47Z")
> [@oldoaktree](#): > > Fundamental difference us. Okay, then what do you think the judiciary’s job is? You say you acknowledge and accept the principle of checks and balances among the branches of government, in which the judiciary evaluates and interprets the laws created by the legislature. So if the judiciary can’t appeal to the notion of fundamental rights that take precedence over formal law, then on what basis is the judiciary evaluating and interpreting laws in the first place? [Previous page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=4) [Next page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=6)