It was not. Separate but equal was never ever implemented. Separate and wildly unequal was what happened and it appeared to be irreparable.
When Roe v. Wade came out, the decision bothered me at the time. Not that I didn’t approve of the result, but that I thought the decision violated the 10th amendment and that such decisions should be left to the states. The northern states were already in the process of modifying their laws and this would have given the women in every state something to fight for. In a way, the victory was too easy.
All laws that treated one class of citizens differently from another in a way that violated the 14th amendment should certainly be abolished but I don’t consider that judicial activism. But when, as in striking down a section of the voting rights bill, they have certainly gone too far.
Marbury v. Madison could be seen as the first case of judicial activism, but I actually think (and it has been argued elsewhere) that to some degree this sort of “judicial review” is all but necessitated by the design of our courts and our system of laws. We have an adversarial legal system, at the end of the day, the court has to rule in favor of one party or the other. There are “no ties in baseball” so to speak, there are mistrials, and dismissals, but there are procedural rules for when those can occur.
In the context of a court being required to find for one party or the other, how does the court proceed if there is not black letter, unambiguous law determining the matter? Well in our common law system the jurist has to analyze the historic common law, has to study precedent for similar cases and use those to inform how he rules. However not all cases even perfectly fit common law and precedent. In such cases the judge all but is required to deduce the intent of those who crafted either the constitution or the statute whose elements are at play, and to approximate an outcome closest to the intent and spirit of the democratically elected branch of government. That process all but certainly will result in judges having to issue rulings, that create precedent that in themselves are not 100% obviously attached to black letter, textual law. When the court making the ruling is the Supreme Court, and that court has precedential standing over all inferior courts in the Federal government, you are creating precedential law that is basically national in scope (even more so over the 200 years after Marbury v. Madison where Federal law’s jurisdiction over state and local affairs increased considerably, particularly as the bill of rights were incorporated into the states and as commerce clause jurisprudence grew.)
I think it is very hard to not end up with something that looks a lot like judicial review in a system like ours. A case like Marbury v. Madison highlights exactly why, the court was faced with a situation where an official (the Secretary of State James Madison) was clearly acting illegally in his refusal to perform a ministerial duty of his office. As Marshall noted, this was illegal, and in ordinary course of events the courts have the authority to order government officials to rectify illegal behaviors. However courts also have to uphold the law, and in the United States we have a very specific law–our constitution, that denotes that it is the Supreme Law of the land, and the only way to modify it is through the amendment process. Marshall concluded that the Supreme Court, as per the U.S. Constitution, did not have jurisdiction over cases such as this. However Congress had passed a law expanding its jurisdiction to cover such cases. Marshall then had to decide–do I rule based on the constitution, which our country has established as the supreme law of the land, or the latter passage of a simple statute by congress (which does not amend the constitution.) In Marshall’s reasoning, he had to uphold the constitution and rule based on the proper understanding that the constitution was paramount, thus basically ignoring the “illegal law.” Thus formal judicial review of congressional legislation was set out in a Supreme Court precedent.
But the converse would be a court finding that it actually cannot enforce the constitution when the constitution and statutory law are in clear conflict, which I think is itself out of line with our system of government. It’s worth noting that while Marshall staked out this position, actual instances of the Supreme Court ruling statutes were unconstitutional was vanishingly rare for about the first 80 years of U.S. history.
I think it’s also worth noting judicial review is intrinsically tied into the judicial power. In the standard set by Marshall, the court isn’t executing laws. The court isn’t legislating. The court is saying we have to rule on cases, and in cases where the constitution and statutory law conflicts we have to find that the statutory law has no legal status. In theory this doesn’t even “unmake” the law, the law stays on the books. But the judicial precedent means courts aren’t going to rule as if the law was valid, which in the vast majority of cases will dramatically limit the laws ability to function. There are obviously some scenarios where an executive or legislative action causes something to occur, that cannot be easily reversed or blocked by a court case. In those cases even if the court finds a law or executive action unconstitutional, the practical effect is minimized.
Another great example of, in my opinion, judicial activism was Dred Scott, in very few cases has a court majority been seen to so obviously rule based on the policy preferences of its members over the rule of law. They actually ruled in contravention to the constitution itself in that case, not just a poor exercise of judicial review but a poor exercise of basic judicial function. There is little evidence it was motivated by anything than policy goals of the jurists in the majority, with little concern to the standard jurisprudence of the era. Even in its time it was called by many a ruling of “great infamy” and was said to have so stained Taney’s reputation that the entire weight of the rest of his career could never counterbalance the black mark.
Yes. I strongly agree with Marbury v. Madison, and I understand it very well, as well as how masterful it was at creating the precedent of judicial review. I also think that "judicial activism’ is, as I said before, just a pejorative term for ordinary judicial decision-making, which the person using the term disagrees with. So, I guess I’ll assume your post was using mine as a jumping off point, and not intended as an explanation to me.
The people I was responding to did not seem to understand how the system could have been viewed by someone like Jefferson, who opposed judicial review. I was explaining that. Not agreeing with it.
Well, it depends on what you mean by unconstitutional. Laws would not be considered unconstitutional, because, as a legal concept, that judgment is a product of judicial review. A person could be of the view that a law violated the constitution, but if Congress and the president are the arbiters of what is constitutional, then by definition any law they make is constitutional.
That concept is similar to the idea under our existing system that the Supreme Court is the arbiter of what is constitutional. When the Court rules, it is treated as determining what the constitution means and has always meant. If one is trying to get a Supreme Court case overturned, one doesn’t exactly argue that it’s unconstitutional. One has to argue that it was wrongly decided. It’s a subtle difference, maybe, but important.
And again, to be clear, I very much agree with Marbury, and it’s a testament to what a good and well-reasoned, and successful, opinion it is that it’s so hard for anyone to imagine any other system.
As to that final question, yes, the laws are not struck from the books. They are rendered unenforceable to the extent that they conflict with the constitution. Many times, only a portion of a law is struck down, and the remainder remains in force. Sometimes it takes multiple cases to get all of a law struck down.
Assumption is correct–that is how it was intended.
I don’t want to guess at the motivations of OP too much as it’s GD, but I’ll note the OP has stated he has progressive views, but seems to take an almost gloatful position at the prospect of a “new” conservative supreme court undoing cherished pieces of liberal “judicial activism.” I haven’t seen OP acknowledge or even explore the fact that most of the last few decades of jurisprudence have been by conservative courts.
Assuming good faith, I will note that I have seen similar arguments in the past where people simply assert a court should just “call balls and strikes”. I don’t think all such arguments are disingenuous. The “balls and strikes” metaphor is actually used by conservative jurists themselves, and has become a popular phrase in conservative legal circles. If the courts really could only rule in situations where the black letter law clearly and unambiguously told them what to do, we wouldn’t really need our judges to even be lawyers (and typically experienced ones), simple magistrates would suffice. We also, without a massive rewrite of all of our laws to be far more specific, would be unable to process most cases that come before courts in America today.
The strikezone in baseball, albeit a little murky to some, is actually fairly well defined. In fact there are technological systems that can perfectly assess whether a ball is inside or outside of a strikezone, it is only sort of tradition that has caused us to continue to use human umpires to call balls and strikes. The core issue that I think OP doesn’t recognize is you couldn’t do that with the courts, a robot judge would be unable to process most cases real judge face because real cases aren’t simple conditional yes/no statements predicated on simple instructional text (whereas the rules on balls and strikes are.)
This is the clearest evidence that the OP does not have a clear definition of what he means by judicial activism. Saying that the Roe v. Wade decision was judicial activism from the left while the current threat to abortion by the conservative court is judicial activism by the right is nonsensical.
Usually judicial activism is defined as a judiciary utilizing their powers of judicial review to declare legislation unconstitutional. Then Row v. Wade would be activist and the current concern over the supreme court reversing itself and allowing states to pass laws outlawing abortion would be non-activist.
That is not to say that there aren’t conservative decisions that fit the above definition of judicial activism. Citizens United and Heller come to mind. But that really just goes to show that dividing decisions into activist and non-activist is a is a bad dichotomy.
As to the OP gleefully pointing out Liberal hypocrisy, he might have a point if Liberals had previously said that they were in favor of Judical activism purely because it was activist. But that isn’t the case. Liberals have commented as to whether a decision was good or bad, generally without tying it to a specific judicial philosophy.
Its really only the conservatives who attempt to justify their support of decisions that reward the powerful and hurt the weak as being “originalist” and “opposed to activism”, while refusing to acknowledge that they are just as willing to support activism and trash originalism when it suits their purposes.
Quite the opposite. Chief Justice Taney was an abolitionist, and wished he could rule against slavery, but his opposition to what we would now call judicial activism prevented him from doing so.
That is what a legislator does. A judge says what the law is, not what it should be. Your belief, while not uncommon, is what has caused the Supreme Court to be viewed as it is today.
We nominate a Supreme Court Justice because he or she is very intelligent, typically graduated near the top of their class at an Ivy League University. They have read cases, treatises, and showed their ability to apply legal principles.
But if all we are asking them to do is to apply their own moral intuition, then none of that matters. Your morals, or mine, are just as good as anyone who went to an Ivy League School. If something is not morally right, then you have your legislature change it.
That’s why some of us care about their character, as well as their academic and professional credentials.
Once a case is before the Supreme Court, there’s a very good chance that there are strong arguments on more than one side. There are different ways of settling those kinds of disputes. It is not always as simple as deciding what a law says, or what a law means, or what a law was intended to do, or what the lawmakers would have wanted, had they been confronted with the question. Sometimes what is called for is foresight, and wisdom, the ability to take others’ perspectives.
Supposedly. ISTM that this is fluff, and judges rule the way they think is best as long as they can make a coherent legalese argument.
Which is how it’s going to be even in the very best system - it’s not about some magical perfect interpretation of law, it’s about who can make a superior argument and explain things better. Because these are human beings we’re talking about, and that’s about as good as humans can be.
Or at least, what a legislator should do. And what an executive should do. And what a teacher and a plumber and a street-sweeper and a police officer and an astronaut should do. Why would it not also be what a judge should do?
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.