Are you rethinking Judicial activism?

I mean, I wish. But I’m pretty well convinced it’s about what a majority of the justices want. And once they have decided that, they will pick whatever fig leaf is offered by the side they are going to rule in favor of. They might, for self-preservation and another fig leaf of legitimacy, pick one of many offered paths that gives them what they want, but doesn’t necessarily preclude arriving at a different conclusion in other cases that are on the other side of some nebulous line.

I’m talking about judges, not attorneys arguing in front of them. Judges will use the best sounding justification for their preferred ruling they think they can get away with. It’s not about a perfect interpretation of the law, it’s about crafting a legalese argument that appears as though it’s a perfect interpretation of the law. AFAICT, anyway. Maybe some judges are perfectly objective, but I doubt that describes more than a tiny number. Most of the “best” are just skilled at making it seem as though their argument appears objective.

Uh, not going to claim I’m Taney’s biographer or anything but I’ve never heard it said by anyone ever that he was anything but a passionate defender of slavery. It should further be noted (and I’m not saying you said otherwise) the issue in Dred Scott wasn’t whether slavery was legal or not. It was essentially whether the circumstances of where Scott had been transported and housed, while a slave, should lead to his being considered a free man. The worst part about the Dred Scott decision has nothing to do with the fact that the court found he wasn’t entitled to freedom, but the fact that Taney didn’t stop there–for literally no reason he expanded on his ruling to touch on things outside the scope of the case, and basically proclaimed that blacks could not even be citizens of the United States. This was odious and counter-factual to our history. As the dissent in the case noted, at the time the U.S. Constitution was written and ratified something like 5 of the 13 states absolutely had black people who were considered citizens of those states, some with voting rights. Taney went way off the rails, and it’s all but impossible to find good legal support for it. That combined with his (at least as far as I’m aware) vigorous personal support for the institution of slavery, and his multiple attempts to undermine Lincoln’s authority during the Civil War, frankly lead me to believe he did a lot of policy making from the bench. Taney was a bad justice on whole because he made a few important, very bad decisions. Most of his legal career outside of that was exemplary and showed great intellect.

Choosing “orginalism” as a guiding principle is nothing more than an application of moral intuition.

It’s not that at all. It is saying that THIS is the society that we have. As a judge, I might disagree with it, but I put that aside. I look at the historical evidence to see what was enacted; what society has agreed to. If that needs changed, then I call up my legislators and campaign that they change it. I don’t decree it from the bench.

Without getting into whether you’ve accurately described the practical application of Originalism (which I don’t believe you have done), deciding to follow a particular paradigm over another is a moral decision. Choosing what aspects of one’s responsibility are more important than others, and what guides your navigation through those responsibilities and what you cast away, are deeply personal choices and questions of morality and ethics.

Now we are just getting into the weeds. Interpreting a document like a Constitution or a contract on its own terms is not a moral decision but a practical one. One that makes people rely on judges to be fair arbiters of conflicts. If they just fly by the seat of their pants, then we don’t have that reliance, and that’s when people resort to guns instead of courts. And also why we started courts in the first place–with judges who follow agreed upon rules prior to the case and therefore will be fair.

If we had a written contract whereby I sell you a laptop computer for $750, I defaulted, and the judge thought that price too little and said $850, you would rightfully complain that he was not abiding by our terms, but on his own moral intuition. My counter-argument that abiding by written terms is also a moral intuition would be sneered at by you because it is frankly a very silly argument.

Even a simple baseball game would be considered unfair if the umpire said that yes, the ball was foul, but only by an inch. The batter should be given a home run because it was close enough. Who among us would say that outcome would be equally as satisfactory because this umpire was following his moral judgment just because the other umpire who followed the rulebook was also using a “moral judgment”?

Are you saying that originalists will always come to the same conclusion?

What if you entered into a contract that said “Everyone gets the same laptop for the same price,” but then the guy you entered into it with (or rather his descendants) came to court arguing, “Yes, yes. We all know that the contract says everyone gets the same laptop for the same price. But if you read between the lines, my family is supposed to get a special (unstated) discount on every laptop we purchase. No, we can’t actually point you to the text that says that. But here’s this letter from my grand-pappy that says that was what he firmly believed in his mind when he signed on to the contract, and he never explicitly said he didn’t believe that.”

Because that’s what orignalism seems like to me. Picking a select number of “founders,” uniquely privileging their secret intent not explicitly written into the document, and then disregarding competing views from their contemporaries, and outright ignoring later developments like the 14th amendment.

Let me give you the perspective of a working lawyer. I must admit I haven’t read every post in this thread but I’ve read a fair bit of it and skimmed the rest and I’m not sure that my point has been made or made sufficiently above.

The human experience is almost infinitely varied. Over the last 30 years in practice, one of the things that constantly bemuses me is the regularity with which situations arise that refuse to conform to what legislators anticipated when writing laws. An extraordinary percentage of the time, a situation is an “edge case” that does not fall neatly within the definitions and categories of legislation, or is a situation which exposes a gap in a legislative regime. And of course legislators are human and they simply make mistakes.

Contracts are the same.

Legal drafting is like developing software and I’m going to use that analogy:

  • Ideally the complete suite of software (the full laws of a country) could cope with every possible totally unfiltered user input that life threw at it, without throwing an error. This is of course a practical impossibility.

  • The software (legislation) is put into production on live highly important data (peoples’ lives) without testing.

  • Bugs are only found when they affect and damage that live data (peoples’ lives).

  • There is no highly effective and speedy team of developers working to fix bugs and expand the capabilities of the software as required, and issue updates nightly. On the contrary, the developers working in the background are overworked, corrupt, significantly incompetent, and have various counter-productive personal agendas.

  • The end-users (the electorate) don’t care about or give any instructions about 95% of what the software needs to do. End-users give confused and contradictory instructions to the developers about the rest.

  • The developers don’t really give a crap about the 95% (even if they are uncontroversial easy fixes) because the end-users don’t care or give instructions about them.

  • The developers spend almost all their time arguing endlessly about a tiny percentage of the problems

  • The developers don’t even want to touch the biggest problems because they will get crucified by end-users whatever they do

  • The developers work using hardware so slow that even a simple, completely uncontroversial bug takes six months to be rectified.

Anyone who knows anything about software development knows that the above is utterly fucking unworkable.

The partial solution the system provides is that there is a team of people (judiciary) who are tasked with trying to solve the problems with the live data, as they arise.

  • Their only authority is to fix the problems by reference to what they can discern from the software itself about the developers’ intention.

  • The reality is of course that a very large percent of the time this is impossible to discern. But nonetheless to keep the users happy, this team pretends to fix problems with the live data only in accordance with the limitations of their authority. Some members of the team barely keep up the pretense. In reality, the team bring to bear their own judgement about what the software should do

  • If this team actually only resolved problems with the live data by reference to what they could discern from the software about the developers’ intention, they would have to simply admit defeat and leave a large number of the problems put before them unresolved, and the system would fail.

To out drop out of my analogy and return directly to the subject of judicial activism, it doesn’t matter what you think about it. The system as organised currently could not cope without judicial activism. If you want to fix the problem of judicial activism, then first you need to fix the problem of the legislature.

We’ve danced the “judicial activism”, dance, many times before on the SDMB.

The two main points I’d like to make here are:

  1. eschroedinger’s assertion that “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.” is patently wrong. Marbury v Madison didn’t create judicial review out of thin air; state courts had been reviewing the constitutionality of legislation for decades before Marbury, and common law in England had also. Federalist Paper #78 also highlights the constitutionality of judicial review.

  2. “Originalism” is a horribly flawed method of Constitutional interpretation. The Founders had a multitude of differing beliefs and definitions of the words used in the Constitution. They were no more of one mind about what “due process” is or of how far the right to free speech extends than modern Republicans and Democrats are today. Pretending you can divine the one true original meaning of the Constitution is folly. If you attempt to determine a single intent of the Founders, you have to ignore " the Founders’ view of the Constitution as a framework, not an eternal truth. It was intended to change over time." As Jefferson said: “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” Quote

Read it again. I did not say that was the only view, or that the decision created judicial review out of thin air. It did absolutely make judicial review the law of the land for federal courts through constitutional interpretation. There had previously been competing views, one of which is described in the quote. The quote is not false.

I fully agree with your second point, and would add that there are other philosophies and approaches to interpreting laws. Originalism and textualism are often treated as sort of the preferred or most legitimate or such, but they are certainly deeply flawed. And practically any method will yield absurd results in some cases if adhered to rigidly.

You made the factual assertion that, before Marbury, “Any law that they passed would have been deemed constitutional by them, and no one would have had the power to overrule that.” That’s not an accurate statement. Courts, including federal courts, had overruled legislation for decades before Marbury was decided. Hell, the Supreme Court had used judicial review in Hylton 7 years before Marbury.

Yes, Marbury was the first time judicial review was used by the Supreme Court to specifically strike down an unconstitutional act, but courts certainly could have (and did) used judicial review to overrule acts of the other branches of government.

It may be we’re in agreement. It just chafes me to conclude that, before Marbury, courts couldn’t actually exercise thei judicial power.

This assumes that those on our side argue that originalism/textualism (not the same but close) is an absolute perfect method of interpretation that will lead to the one true result. That’s a strawman. The argument is that it is based on the written text. It answers more questions than it leaves open (for example the death penalty is clearly permitted) and in the close cases the judges can decide which founding father had the better argument, again, based on history, tradition, and the English common law.

  1. Nobody said the Constitution should last as written for all of eternity. That is why there is an amendment process which is was Jefferson was advocating. He envisioned a new constitutional convention every twenty years or so, but as we note, those changes are voted on by the people, not an unelected nine lawyers who sneer down their noses at us rubes.

Yeah, tha’

That’s very true. I’m in the first camp- judges are just that, judges. Their decisions shouldn’t be based on their ideological views or desires that things be a certain way.

To use your balls & strikes analogy, proper jurisprudence is having a consistent strike zone and calling the balls and strikes according to it. Judicial activism is varying your strike zone as an umpire based on your feelings about whether or not a particular player or team should get on base.

But the SCOTUS seems to be a lot like sports; people only bitch about the referees/umps when the calls seem to go against their preferred team.

The problem with the baseball analogy is that in baseball, there is a rule for every possible eventuality.

That is not the case with the law, the constitution does not cover every eventuality. So, to make your baseball analogy fit, try erasing about half the rules in baseball, and ask your umpire to continue to rule on plays.

In context, I said that was a view that existed. I may not have written it super clearly, and I’m going to drop it because I don’t want to argue over wording. I wasn’t making that statement as a factual assertion, in context. Accept that or don’t.

Cool. completely accepted.

Thanks. I think we agree. I was just trying to explain the contrary view because some people didn’t seem to be able to envision how any other arrangement could exist/work.

I think it’s a testament to how much sense judicial review makes in our system that anything else seems completely or almost completely nonsensical.

I was likely over-aggressive with my interpretation of what you wrote. Glad we agree.