I am willing to bet good money that if you surveyed self-identified liberals, a substantial majority would agree with the statement judges should strive to do what they think is right, to use the law to shape good public policy.
I’d say that is the role of the judge, if you add on “within the confines of the law at question and the constitution.”
As would almost every other liberal I know in the legal field.
…and that self-identified conservatives would agree with that statement to a lesser proportion?
Nevermind.
Hmmm.
I don’t think so, but we could clear it up with a set of questions, maybe ranked by “strongly agree” to “strongly disagree.”
Judges should strive to do what they think is right, to use the law to shape good public policy.
-and-
Judges should act like umpires, neutrally applying the law as written regardless of the wisdom of the public policy underlying it.
My contention is that self-identified liberals would much more strongly agree with statement one than with statement two, and the reverse would be true for self-identified conservatives.
Your contention would be completely wrong. I actually think it’s not only wrong, but backwards. It’s only conservatives I ever hear saying that judges should conform to their morality rather than applying the actual law. I would present Schiavo as exhibit one.I can’t think of a similar case where droves of liberals wanted the courts to render a decision which ignored the law in favor of their moral opinions.
I agree the Schiavo case cuts against the trend I’m predicting.
But… applying the actual law? Liberals usually argue that the actual law is an evolving, changing landscape based on our evolving understanding society. There’s no “right to privacy” in the Constitution. That “actual law” was created by judicial decision. Now, sure, you can point to case law supporting it, but the authors of Griswold v. Connecticut could not. They declared it to exist.
The actual law in California is Prop 8. It’s not conservatives trying to overturn it.
The actual law in Georgia was that sodomy was illegal. It wasn’t conservatives trying to get the courts to change it.
Obviously I think that approach is flawed. But there’s nothing objectively wrong with it. It’s perfectly viable to say, as many have on this very board, that sometimes the majority gets it wrong, and the courts have to step in and do the right thing.
But that’s a very liberal view, in general.
(Now, perhaps it’s not so much a liberal view by outlook as it is by circumstance. What i eam to say is… perhaps liberals say that because more often than not, they are the ones pushing for change of the status quo, pushing for a change to the law. Maybe the Schiavo case illustrates that conservatives would happily do the same, if they were more often in that position. Maybe the recent "health care is unconstitutional"flap shows the truth of that proposition as well.)
Hmmm.
Now, these statements are true, but not the whole truth, and as such are completely misleading. The actual law in Georgia was that sodomy is illegal, subject to further laws; those laws being the Georgia and United States constitutions.
The argument was that actually the law was that sodomy wasn’t illegal because the state of Georgia lacked the power to make it illegal, because it was protected activity under the United States Constitution, which, I am sure you would agree, takes precendence where federally protected rights are at issue.
So liberals were actually saying enforce the law. That you disagree with their interpretation of what the law was doesn’t mean that they were trying to have the court create the law. Their argument, and IMHO they were right, is that this law always existed. The Georgia law criminalizing sodomy was always invalid.
The actual law is the recently passed HCR bill. It’s not liberals trying to overturn it in the courts.
But the Supreme Court had already spoken on that issue.
So it seems to me at the very least, you’d have to characterize liberals as saying, “Take another look, Supreme Court, at this law you said exists: are you SURE???”
How is that really different from saying, “Supreme Court: change the law, please!”
Um…
Got it.
Yes, I’m going to replace my “Hmmm…” with a definitive statement. Or a pair of statements:
(a) It’s liberals that do this more often than conservatives
(b) This is not the result of liberal or conservative ideology, but of positioning: it’s more often the case that liberals seek change, and that process puts them more often in a position of butting up against established law. On the less frequent occasions when conservatives are thwarted by existing lawe, they have no reluctance to use the court system either.
Yes, it can be viewed as asking the Court to look at it again. Because of the premise that the Court got it wrong before, which the Court essentially admitted it did.
What you call “change the law, please” can just as easily be called “don’t go on allowing an illegal law to stay on the books.”
So conservatives, by opposing such legal actions, can be portrayed as asking the court system to allow the legislatures of the states to act in illegal manners. Of course, that would be assume bad motivations on the part of conservatives, which is why I am willing to give them the credit that they actually believed laws banning sodomy (or allowing segragation) were constitutional. I don’t automatically assume they were looking for the courts to defend a system that they were willing to impose despite the constitution through the tyranny of the majority.
Maybe you could give liberal lawyers similar latitude and acknowledge that some of us believe that segregation and sodomy laws were always unconstitutional, and, as such, were illegal actions of tyranny by the government against the people.
Is “ceremonial deism” in the Constitution?
This becomes a little tautological because the supreme Court is the arbiter of what is or is not in the Constitution, but I would argue that the right to privacy is far more clearly implied and defensible from the text than the completely fabricated “ceremonial deism” exception to the Establ;ishment Clause.
The actual law in California is Prop 8. It’s not conservatives trying to overturn it.
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Prop 8 WAS a conservative overturning of a law, and I’m not aware of liberals trying to use the courts to turn it back again
The courts didn’t change the law, they upheld it. The law itself was illegal. Overturning unconstitutional laws is not activism. It’s what courts are supposed to.
I don’t think that’s true unless the law clearly violates some Constitutional tenet.
Well, there you go. It all depends on whose ox is being gored as to what gets percived as clearly constutional or unconstitutional, or what gets perceived as judicial activism.
Because they’re saying, this time UPHOLD the law instead of making an activist decision to refrain from it.
How about Bush v. Gore? The conservative decision on that was so founded in the law the court took the unprecedented step to say no one should ever use that decision as precedent for anything ever.
How about District of Columbia v. Heller? Please point out where in the constitution there is a right to self defense listed? Personally I would say there is such a right and that it is fundamental but it emanates from the 2nd amendment (not to mention deciding the word “militia” doesn’t really mean anything there)?
We could go tit-for-tat on cases all day. This is NOT meant to debate the particular merits of Heller (or whatever).
The point being I do not see the issue of melding the law to fit a preconceived notion of how things ought to be as unique to liberal judges. Heck, most SCOTUS cases have a minority and majority. I think both decisions are couched in the law and they disagree how the law is being interpreted. Who are you to say only one side is really applying the law while the other is inventing law out of thin air?
The only activist court is the one you disagree with, otherwise they are applying the law as written right?
Really? That escaped your attention?
This is the main reason I didn’t bother with Bricker or his argument. It’s little more than political theater, full of the sound and fury of right wing talking points, and in the end signifying nothing. He’s made up his mind, he won’t be dissuaded, and will continue to champion this idea that liberals don’t follow the law, but conservatives do. Don’t waste your time.
That is an often-leveled charge, but when it comes to me, personally…no. There are plenty of decisions I can cite where I disagree with the result, but agree they are applying the law as written. And there are plenty of decisions I can cite where I agree with the result, but admit that the method used to get there was highly suspect.
Example #1: Kyllo v. U.S.. Does a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment? I say no. As far as I can see, the home is emanating infrared rays into the public air, just like its emanating ordinary reflected light. Anyone who uses a device to catch and examine those rays is not “searching.”
But the court disagrees, relying on the word “search” as it would be commonly understood. Ordinary peopple can’t see the infrared; people don’t take precautions to avoid infrared disclosure; it can reveal activities we prefer to keep private. So the Court (with Scalia writing the opinion!!) says that’s a search, and it needs a warrant. I don’t like the result, but I must admit that it’s solidly based on the text of the Fourth Amendment, as it is fairly read and understood by a reasonable person.
Example #2: Lawrence v. Texas. Does the Due Process or Equal Protection Clause prevent a state from declaring sodomy illegal? I say no. Certainly the people that drafted those words never intended or imagined that they would be used to declare the sodomy was a protected act. It’s absurd.
But at the same time, I think it’s absurd for a state to criminalize it. So the right answer is for sodomy to not be a criminal act. I’m completely in favor of the result. But the method used to get there was dodgy in the extreme.
So no – I don’t haul out the activist flag for a decision I disagree with. I haul it out for a decision that is not grounded in the actual text of the law, as it was understood by the people that adopted it. There are plenty of times I like the result, but wince at the method used to get to the right result.
No. Liberals simply have a more expansive view of how the law, and especially the judiciary, should be used as an instrument of social change. They certainly follow “the law,” they just believe that the meaning of the law changes over time, even if the words of the law do not.
True? Or not true?