I agree, but the reality is much different. I don’t think any judge consciously does that. You have so many “empty bottles” in the Constitution. Due process of law, equal protection of the law, privileges and immunities of citizenship, the Ninth Amendment. It’s pretty easy to see your own version of what is morally right as fitting nicely therein.
When would that have been in the south? 1998?
So it’s ok if you agree with decision? Then there you have your answer as to why “judicial activism” exists and has support.
I’m opposed to judicial activism, but we need to define it.
Is restoring constitutional principles that have been eroded ‘judicial activism’?
In my mind, Judicial activism means using the courts to exact social change rather than strictly reading the law and interpreting it as accurately as possible. But if you put someone on the court in the hope that they will rule not according to the constitution but rather in favor of your politics, then you are advocating for judicial activism.
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.
An example of right-wing judicial activism might be something like finding an exception in free speech laws for pornography or Marxist speech, where none clearly exists.
It seems to me that Republican judges are generally picked when they promise to uphold the constitution no matter what. Democrat judges are picked based on their willingness to support Democrat’s political goals.
And I don’t think this conservative-majority court is activist at all. This can be seen by looking at how often judges vote in lockstep with their party or fellow judges on ‘their’ side…
Justice Gorsuch is an originalist. As such, he often finds himself opposed to Republican laws that overreach the Constitution. Justice Kavanaugh has sided with Elena Kagan and Stephen Breyer as many times as he has sided with Gorsuch. John Roberts has become a swing vote, and he came up with the ‘tax’ idea that saved Obamacare (an example of Judicial activism by a Republican appointee in favor of a Democratic program).
So if some Republicans are hoping for conservative judicial activism from this court, I think they will be disappointed. Note that the full court with Amy Coney Barrett on it refused to hear any of the election cases brought before it by Trump’s lawyers.
quite the opposite, i am opposed to judicial activism, even when it supports my personal views. I am trying to keep the the thread on the “big picture” topic of Judicial Activism. Knowing full well the left and right will bring up various cases.
Great, bring up various cases of Judiciary Activism.
But debate Judiciary Activism. Are you left wing? tell me why left wing Judiciary Activism is wrong. Are you right wing? Tell me why right wing Judiciary Activism is wrong.
Or argue Judiciary Activism is right.
I don’t disagree with this at all. I support it. But as @Chingon said, it leads to the undeniable conclusion that Brown was wrongly decided. And if you want to apply the death penalty to your (the general you) constitutional method of interpretation, just say that Brown was wrongly decided. The huge weakness in OUR theory.
I won’t get into the details as to not detail the thread, but it’s not a weakness but what makes that judicial philosophy so appealing to that demographic.
If the constitution doesn’t speak on the issue at all, normally this would be up to the states to decide. I am not a lawyer, but the federal role might come through the interstate commerce clause, or through tax law. And I would say that the federal government has no right to ‘ban’ same sex marriage federally, as that’s not in any of their enumerated powers. Whether they would have to recognize gay marriage in administrative law like taxes or tort or rules against incriminating a spouse, I don’t know. My guess is that that this court would rule that it has no jurisdiction over marriage, and therefore is simply silent and the default would be the stais quo, that it is permissable. Therefore the government would have to treat married people, gay or otherwise, the same.
At least, that’s the way I’d rule. If the Constitution doesn’t speak on a specific issue, the default should be for liberty. And the ‘penumbras and emanations’ of the constitution (in this case the clear preference for freedom: free speech, free association, limited enumerated powers) means that the default position for ANYTHING should be that it’s allowed, and the justices should have to do the heavy lifting of showing exactly why something is disallowed by the Constitution or by lawful constitutional legislation before anything other than the default is considered.
Oh come on now. Nobody that subscribes to this judicial philosophy wants segregated schools. That is a cheap shot.
Let’s not perpetuate the story that it was Earl Warren and the liberals who invented judicial activism.
Go back and read Supreme Court decisions on things like the Right to Contract and Separate but Equal. There were conservative justices legislated from the bench over a hundred years ago.
And it didn’t start there. Judicial activism goes back to John Marshall and Roger Taney.
And if you supported Judicial Activism when the Liberals were in charge, do you still support it when the Conservatives are the majority
Fine, You support Judicial Activism. It goes back to John Marshal and Roger Taney. Tell me why you support it
Nobody said they did.
Agreed. The “Right to Contract” was something that put the Supreme Court in undeniable disrepute in modern times. All a judge has to say is “Lochner” and he has a point.
Separate But Equal, as terrible and awful as it was had historical support, as sad as that is to say. The Congress that passed the 14th Amendment saw no problem with separate schools and anti-miscegenation laws. Brown was indeed judicial activism.
Taney likewise engaged in judicial activism in Dred Scott; the single worst decision in the history of the Supreme Court. Not sure what John Marshall did.
If you say so. All I know is that if Brown v Board was overturned and the decision was left to the states,I wouldn’t hold my breath waiting for certain state legislatures to pass laws outlawing segregation.
I agree, but the argument lost. And there the court admitted that there was zero basis in history and text.
You mean today in 2021? We will have to agree to disagree on that point. I know of nobody, and I mean nobody who would support that.
Regardless of any particular case anyone brings up, on the left or right, the legislative branch and the executive branch make laws. Not Judges.
Individual cases are not what i am trying to discuss.
You can clearly find judicial activism on both sides if you go through American history. I think it’s more useful to focus on the modern court, at least say the past 50 years. I’m sure you can find judicial activism on both sides there as well.
How so? Brown v. Board of Education was decided on disparate impact, which is in the 14th amendment. If black and white schools were of equal quality and equal access, they might not have voted for it. But they clearly were not, so black people had less access to public infrastructure based on the color of their skin - clear violation of the 14th.
Again, I’m not a lawyer, so perhaps you could explain why the decision went against the constitution?
A better example might be Roe V. Wade, which even many liberal legal scholars admit was wrongly decided by consitutional principles, but judges on both sides are willing to let remain in place now because of stare decisis.
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.
It’s when judges go outside of the law and start interjecting their personal beliefs into their opinions that you’d expect to see divergent decisions being made.
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.
The devil’s in the what the proposed law would be.
I don’t see conservatives writing an effective law and gaining enough votes to pass that would give the state such powers to force integration.
Perhaps it would be interesting to have another thread where a conservative crafted such a proposed law.