My apologies: the phrase “the law decrees that…” is a very common one in ordinary usage, and I wasn’t aware that lawyers take issue with its implication that the law, and by extension the legislature that made the law, is “decreeing” what it says.
Sure, in the same way that I can see the difference between a human being and a scarecrow. I somehow doubt that there are a lot of rulings out there by such obvious straw “judicial activists” whose arguments are openly declared to be founded on nothing but their own subjective preferences.
And once we ignore such straw activists, we’re back to the debatable ground of what qualifies as a solid judicial argument and what doesn’t.
I mean some common law predates the constitution, some doesn’t. But you’re saying courts have to rule off of the written law, I just gave you a fucking piece of written law that says the courts need to uphold standards of the common law. Explain to me how the courts do that under your paradigm of only ruling as a legislature has written. I’ll be waiting.
So to stick with Miranda, (and away from Roe and Obergefell) how can you possibly justify, through anything said by Jefferson or Madison, or Charles Sumner, any historical papers or traditions of the common law, that the police need to affirmatively tell someone that they have the right to remain silent? Or the rest of the specific incantation that the police must use?
That was made up out of whole cloth. Warren thought that there were just too many suspect confessions, that police had beaten suspects in the past, and therefore the Court just must announce this very broad new rule. But if it is not based on anything related to the Constitution, that isn’t the Court’s job.
The power of the Supreme Court to invalidate an act of the United States Congress (called ‘judicial review’) is actually not in the constitution, and I think that power is in fact a form of judicial activism. I think this form of judicial activism is good.
I mean, it seems kind of silly to take such a pearl-clutching attitude of “how can you possibly justify”, because clearly several generations of knowledgeable judges and legal scholars have found the decision to be justifiable, and have spilled hogsheads of ink explaining its justifications.
Even if it’s quite possible for reasonable people to disagree with the justifications, trying to handwave them out of existence by just pre-emptively declaring them invalid obviously isn’t going to fly.
the balance of power between the 3 branches of government is my concern. liberals are (were) all for Judicial Activism, what happens when SCOTUS turns conservative. That was my OP
Well, even the founding fathers had differences of opinion. Thomas Jefferson for example thought the Supreme Court should be powerless to strike down federal laws. He basically said it is judicial activism, but without using that term.
Great! So what, exactly, are these referenced “standards of the common law” that you think are a legitimate basis for judicial interpretation because they are mentioned in written law?
At some point, your desperate clutching at explicit textualism is bound to run out of material, and you have to acknowledge that judges can validly interpret and evaluate laws on a basis that includes some concepts and principles not explicitly enumerated in written law.
I don’t think it’s really possible to have a judicial system of interpretive “meta-law” that’s based only on the written laws it’s interpreting. You run afoul of some version of the incompleteness theorem or something like that.
What difference does it make, from your standpoint? According to you, SCOTUS is required to defer to legislative decisions, in order not to be committing “judicial activism”. If the democratically elected members of Congress enshrine in law the position that all the Jews need to be deported, it’s not SCOTUS’s job to second-guess their decision and “legislate from the bench”, right?
We know that that’s what your OP was trying to argue, but the core problem here is that your OP is dumb.
Nobody in this thread disagrees that it’s possible for judges’ interpretation of laws to be influenced by their own moral principles, or that laypeople often prefer judicial interpretations that conform to their own moral principles, or that these phenomena can be viewed at all points of the political spectrum.
What’s dumb is your notion that there’s an obvious bright line between decisions that are “judicial activism” and ones that are “not judicial activism”, and that “judicial activism” can be eliminated just by simplistically demanding that judges base all their decisions solely on “written law”. Even I, emphatically NAL, know that the whole system of jurisprudence is more complicated than that, and more complicated than you seem to have any idea of.
Depends: are you acknowledging that knee-jerk objections to vaguely defined “judicial activism” are effectively demanding that the courts abandon their main meaningful function in order to act as a pointless rubber stamp for the legislature? Because I agree with that characterization.
I agree that it would be wrong for the Supreme Court to draft up a new law, vote on it, and send it off to be published as a statute. But we all know that isn’t what you are talking about.
“Judicial activism” is a boogeyman phrase – I have to agree. Or, more accurately, a pejorative invented by the right to apply to ordinary judicial decisions they don’t agree with. People trying to apply the phrase evenhandedly just show that they don’t understand that it was never meant to work that way. It’s a term that was applied to ordinary judicial decision-making that came to the “wrong” answer. If you apply it evenhandedly, you are decrying ordinary and necessary judicial decision-making.
Can you articulate what judicial activism is, as opposed to just deciding cases? What separates those two things? You named Miranda as a clear-cut case of judicial activism. What makes it so?
I have to disagree with you there. oldoaktree may not be as eloquent as Thomas Jefferson but I gather the two of them share the same basic concerns. See my cite above.
“you seem in pages 84. & 148. to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionim,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective countroul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corrputions of time & party it’s members would become despots. it has more wisely made all the departments co-equal and co-sovereign within themselves.”
My apologies: the phrase “the law decrees that…” is a very common one in ordinary usage, and I wasn’t aware that lawyers take issue with its implication that the law, and by extension the legislature that made the law, is “decreeing” what it says.