# 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:** 9
**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, 8:09am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/161 "2021-06-16T08:09:36Z")
But the government is saying that he is lawfully detained and ready for execution: see here is the law that Congress passed, and the proclamation by the President. If you decline to allow him to be executed, the only possible reason that he was unlawfully detained would be that the law was unconstitutional. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 16, 2021, 8:28am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/162 "2021-06-16T08:28:34Z")
> [@UltraVires](#): > > But the government is saying that he is lawfully detained and ready for execution: see here is the law that Congress passed, and the proclamation by the President. Under such a theory, which I do not personally espouse, ascertainment of these facts would satisfy my court’s writ of habeas corpus. Two branches of government have all but renounced the constitution, so I am not particularly bothered if the third branch is I’ll equipped to salvage the nation. ~Max ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 16, 2021, 9:04am UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/163 "2021-06-16T09:04:15Z")
We’re far too late. The court is already very activist, and has been for many years. A non activist court sounds like a good idea on paper, but is not likely at all at present. The best we can hope for is an activist court that uses their power for good rather than evil. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 16, 2021, 12:04pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/164 "2021-06-16T12:04:07Z")
**Modnote** : @oldoaktree As you are new, I want to make sure you know the #1 rule of GD (Great Debates) is > [@New Rules for Great Debates and Elections – January 2020](https://boards.straightdope.com/t/new-rules-for-great-debates-and-elections-january-2020/845726/1): > > **Attack the post, not the poster.** We’re here for fun, not harming others. Personalizing posts is usually a bad idea. Comment on the content of the commentary and not on the person making it. So do watch it please. The rules for GD and P&E are here: > [@New Rules for Great Debates and Elections – January 2020](https://boards.straightdope.com/t/new-rules-for-great-debates-and-elections-january-2020/845726/1): > > Moderation in Great Debates and Politics and Elections In general, Great Debates and Politics and Elections are the most contentious fora on the SDMB. Because of that, you’ll find that moderation is more active and prone to sanctioning posters. You can compare it to sitting at the holiday dinner next to the crazy uncle who can’t help being unpleasant. Please don’t be that guy. Be aware that most rules are not ‘bright line’. This is intentional on our part as we believe such encourages poor … ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 16, 2021, 12:27pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/165 "2021-06-16T12:27:39Z")
> [@Sam\_Stone](#): > > Upholding the second amendment is not judicial activism. Finding some thin justification to avoid the clear meaning of the constitution because you don’t like its limits IS judicial activism. Agreed - for example, blatantly ignoring all mention of a “well regulated militia” when interpreting a certain amendment is Judicial Activism of the highest order. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 16, 2021, 12:32pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/166 "2021-06-16T12:32:57Z")
**Modnote** : This is a preventive note, This discussion will not vere off into the specific issue of Gun Rights or Abortion rights or etc… Example are fine but not an invitation to make that a major part of this Debate. _This will reopen in a few minutes._ ---
**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, 12:33pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/169 "2021-06-16T12:33:55Z")
Ok then just say liberals are hypocrites without all of this window dressing the first time. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 16, 2021, 12:40pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/171 "2021-06-16T12:40:16Z")
Opened on June 16, 2021, 12:40pm UTC This topic was automatically opened after 6 minutes. ---
**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, 12:52pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/172 "2021-06-16T12:52:17Z")
> [@oldoaktree](#): > > Could not have said it better myself. I judge this to be an accurate statement of fact. ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [June 16, 2021, 1:21pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/173 "2021-06-16T13:21:23Z")
> [@oldoaktree](#): > > Could not have said it better myself. If that’s your point, then maybe Great Debates was the wrong forum for this OP? ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [June 16, 2021, 1:35pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/174 "2021-06-16T13:35:04Z")
> [@oldoaktree](#): > > my poor delusional liberal friends No u R! > [@oldoaktree](#): > > that’s my point. SCOTUS should not have that power whether liberal or conservative. Oh . . . it sounded like your point was that liberals were delusional, or about to get pwned or something. Now I see. > [@oldoaktree](#): > > Liberals do it. Conservatives do it. Is Judicial Activism a good thing? Ok, so at this point we at least agree that “judicial activism”, whatever that might exactly mean (and which you seem unwilling to discuss), is a concept that can be applied to court decisions throughout the history of the court, and is not the product of any particular party. > [@oldoaktree](#): > > you made the monster. Oh wait, I guess you were just pretending to agree? ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 16, 2021, 1:39pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/175 "2021-06-16T13:39:11Z")
> [@UltraVires](#): > > that the police need to affirmatively tell someone that they have the right to remain silent? They don’t have to tell someone they have the right to remain silent. There is no law that says so. There is no fine, no penalty, no punishment at all to a cop who does not inform them of their rights. However, if they wish for things said by the suspect to be admissible in court, then they do. This is less matter of creating law, and more a matter of explaining how the courts will treat information obtained through questioning of a suspect. It only has applicability within the court itself, the place where the court has jurisdiction. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 16, 2021, 1:50pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/176 "2021-06-16T13:50:50Z")
> [@oldoaktree](#): > > it is up to congress to say whether it is legal or not. and the fact they didnt, makes them assholes So, would you say that it is up to congress to decide whether establishing a religion, censoring speech, confiscating guns, quartering troops in your house, imprisoning people without due process, or making ex post facto laws is legal or not? Does the court not have a say in the matter, in your opinion? Do you think that District of Columbia vs Heller is judicial activism? How about Citizen’s United vs the Federal Election Commission? Near v. Minnesota? How about New York Times Company v. United States? ---
**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, 2:05pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/177 "2021-06-16T14:05:21Z")
I like that OP has continually ignored the simple fact that we’ve had a conservative court for 40 years, gay marriage (Obergefell v Ohio) was a Republican-majority court, Planned Parenthoood v Casey, which uphold Roe, was a Republican supermajority court (I think 6 or 7 GOP justices.) Not to mention Heller, which also would rank at least on most people’s shortlists of “judicial activist” rulings, was a conservative ruling etc. OP seems to lack the knowledge of how judicial interpretation works in our system of laws, appears to not understand the relationship of the common law to the courts (or even what the common law is), in short, I’m not sure OP has expressed a viable framework for defining what judicial activism is or even how he believes it works, let alone how he thinks it should work. OP doesn’t actually appear to be against judicial activism as **anyone I’ve ever heard of defines it** , he actually appears to be against the concept of **judicial review** entirely, which is a far different and more alien (in the United States) position. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 16, 2021, 2:10pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/178 "2021-06-16T14:10:22Z")
“Judicial activism” is just a pejorative term for “judging”, just like “political correctness” is a pejorative term for “politeness”. Yes, of course I expect a judge to use his or her own sense of morality to come to the most good decision. I expect every person, in every walk of life, to apply their own sense of morality to everything they do. And some of the greatest judicial evils in this country’s history have been the result of judges deliberately setting out to avoid their own morality in favor of “what the law says”. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 16, 2021, 2:10pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/179 "2021-06-16T14:10:30Z")
> [@Max\_S](#): > > Two branches of government have all but renounced the constitution, so I am not particularly bothered if the third branch is I’ll equipped to salvage the nation. That’s going to be the case any time a law is passed that is unconstitutional. The example was one that is very clearly unconstitutional, so there is no debate _here_ as to the constitutionality of it. There are other laws that are passed by congress or by the states that are a bit more subtle in their violations of the constitution. That doesn’t mean that they have abandoned the constitution, only that those legislatures didn’t think that the laws that they passed were in violation of it. But, if there is no check to the laws that may be passed, then what reason does anyone have to follow the constitution in the first place? Is it just a suggestion to be dismissed if it is inconvenient? ---
**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, 2:19pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/180 "2021-06-16T14:19:57Z")
FWIW, I do think you can pin down judicial activism and even at least argue that it’s negative, but it’s a narrower argument than what is normally presented. To me a simple working definition of judicial activism would be: **When a jurist uses their judicial power to promote policy goals via rulings that go beyond what is necessary to adjudicate the case on which they are ruling.** ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [June 16, 2021, 2:32pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/181 "2021-06-16T14:32:08Z")
> [@Martin\_Hyde](#): > > I like that OP has continually ignored the simple fact that we’ve had a conservative court for 40 years, gay marriage (Obergefell v Ohio) was a Republican-majority court, Planned Parenthoood v Casey, which uphold Roe, was a Republican supermajority court (I think 6 or 7 GOP justices.) Not to mention Heller, which also would rank at least on most people’s shortlists of “judicial activist” rulings, was a conservative ruling etc. Don’t forget striking down key parts of the voting rights act (passed into law by Congress, obviously) that conservative judicial activists thought wasn’t a good idea any more. > “Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” ---
**Author:** ![Slithy\_Tove](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slithy_tove/32/18248_2.png) [@Slithy\_Tove](https://boards.straightdope.com/u/Slithy_Tove)\ **Post date:** [June 16, 2021, 2:48pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/182 "2021-06-16T14:48:50Z")
To answer the OP: No, I’m not rethinking judicial activism, now that it’s pendulum has swung to the right. I’ll take any form of activism\* from whatever quarter for as long as it lasts, so long as it advances the state of humanity. Judicial, legislative, executive. As an atheist I don’t like how the African American church tried to stop gay marriage rights, but can’t deny it was the main force in the Civil Rights movement, and continues as the main force today for voting rights. Sometimes the bar of soap gets dirty, but using it cleans both it and brings it back to purpose. \*_effective_ activism, not empty sanctimony ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [June 16, 2021, 3:45pm UTC](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357/183 "2021-06-16T15:45:01Z")
> [@UltraVires](#): > > Say you are a federal judge. Congress passes a law that says a person can be executed if the President deems him a danger to society. The prisoner files a petition for a writ of habeas corpus contending that the law violates his Fifth and Sixth Amendment rights. Jefferson wanted to rely on Congress and the president being bound by the constitution, and their interpretation of it. If Congress passed a law, that would mean that Congress interpreted the Constitution as permitting it. And the president by signing it agreed. I don’t think it was a realistic view, and I think Marbury v. Madison was an essential decision in making the US system work. It would also likely fall within any intellectually honest attempt to define “judicial activism.” > [@k9bfriender](#): > > That’s going to be the case any time a law is passed that is unconstitutional. The example was one that is very clearly unconstitutional, so there is no debate _here_ as to the constitutionality of it. Only since Marbury v. Madison. Before that, there was a view that Congress and the president would interpret the constitution for themselves, and not pass anything that they viewed as unconstitutional. Any law that they passed would have been deemed constitutional by them, and no one would have had the power to overrule that. Again, judicial review is not expressly in the constitution. It became law in Marbury v. Madison through constitutional interpretation. [Previous page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=8) [Next page](https://boards.straightdope.com/t/are-you-rethinking-judicial-activism/944357.md?page=10)