Judicial activism and conservative judges

From the NY Times:

Is voting to overturn a law passed by Congress a reasonable measure of “legislating from the bench”? If not, how does one define “activist judge”? Or is this just one of those conservative facts that nevertheless defies objective measurement?

If it is a fair measure of judicial activism, what is to be made of the clear correlation, among the current Supreme Court justices, of “conservative” with “activist”?

From this, I would conclude that “judicial activism” is another boogeyman dreamt up by the conservatives to try to cow their opposition into failing to aggressively defend themselves, and that liberals need to be aggressive in defending themselves and making note of the prevalence of conservative legislation from the bench.

No. It’s not what is meant by judicial activism.

It is at least loosely related, though, in that judicial deference is part of judicial restraint.

Striking down laws as Unconstitutional is what the Supreme Court (and other members of the judiciary, for that matter) is supposed to do.

Judicial activism is not striking down laws. It’s re-interpeting a present law to where it holds a meaning never intended by the authors of the law.

Yes and no.

Yes, “activism” is in the eye of the beholder. If you are conservative, and a liberal legislative body is passing laws that are “liberal” in nature, a court which uses some constitutional law theory to strike such laws down is not being “activist,” but, rather, applying the strict construction of the Constitution to reign in out-of-control legislators. When a conservative legislative body passes a law that is struck down by a liberal court, using an expanded concept of constitutional law, this is “judicial activism” of the worst kind. If you want really aggressive “judicial activism,” simply look at the decisions of the Supreme Court of the United States during the first 35 years of the last century, during which time it was controlled by Republicans of a quite conservative stripe.

On the other hand:

In general, when the Court is being “run” by conservatives, and is striking down legislation, it usually is doing so by using a restrictive interpretation of the Constitution. Remember that, in general, what defines liberalism is the willingness to focus on the rights of the individual over the rights of government to regulate the individual. Since the Constitution has only certain less-than-well-defined limits upon government power over individuals, any attempt to reign in a “liberal” Congress or legislature doesn’t usually require drawing larger boundaries around permissible legislative actions. By contrast, a liberal Court, attempting to protect individuals from an aggressive legislature will seek to do so by expanding the protections found in the Consitution to cover the situation before them. Viewed this way, “judicial activism” is rarely involved when striking down legislative acts from the standpoint of conservative readings of the Constitution.

As an example:

Congress wants to control the distance that convicted sexual offenders can live from schools, perceiving that the public wishes stricter limits than some states are allowing. Congress passes a bill tying use of the school funds that each state gets from Congress to passage by the state of legislation setting stricter limits on the distances involved. California objects, and takes the matter to the Supreme Court, where Justice ScaliThomas votes to strike the law down as an improper usage of Congress’ right to control the purse strings of federal funds. Is this “judicial activism?” Some on the side of liberalism might say it is, since it denies the people the will of their representatives and, potentially, creates new law on the issue. But looking at what has happened, the Court hasn’t in such a case expanded anything. Rather, it has refused to let Congress expand its powers. That is hardly “judicial activism.”

On the other hand, if Justice O’Kennedy votes to strike the law down on the basis that it fails to meet some three-point test designed to avoid trampling on some person’s “due process” rights, requiring the Court to weigh the value of the law versus the harm it does, THAT would certainly be “judicial activism,” since it would be putting the ultimate policy decision in the hands of the Court. It is precisely that sort of approach that the Court used in the early 1900’s to void several attempts by Progressive legislatures to address important social and commercial issues raised by the economy of the time.

That’s not accurate, either. You can be judicially “activist” without reinterpreting anything. You simply have to be willing to view the legitimacy of a law through an expansive interpretation of the Constitution, rather than through a restrained application of that document.

Mr. Lochner, your bagels are ready for pickup.

Oh, for Pete’s sake, DS!! We’re now defining judicial activism and self-restraint in terms of schools of constitutional jurisprudence?

I’ve been maintaining for years around here that the term does have a legitimate meaning, though not the ones the typical conservative talking heads invest it with. Apparently I was wrong; it does mean whatever the hell the person using it disagrees with.

I’m beginning to think that I should have spent the time I used to try to read up on Constitutional Law studying Henry VI, Part II. :smack:

Well, I find his argument entirely irrefutable, and concede myself bested.

That counts, right?

No, you can define it in similar terms without application of Constitutional principles. However, that wouldn’t involve the assertion of Airman Doors, USAF that judicial activism is limited to re-interpreting a law to fit the needs of the court for a decision. Indeed, that type of judicial decision is rare, and one of the worst practicioners the last twenty years has been Justice O’Connor. As for “re-interpretation” of a law beyond what was meant, that’s always a sticky issue to argue, impossible in general to be certain what exactly WAS meant, since there are 535 members of Congress who were involved in voting on it, and assigning a true and specific purpose or intent to them is, frankly, stupid. As exhibit A, I give you the First Amendment.

Who says I disagree with any of it? :stuck_out_tongue:

I defy any of you who’ve seen me post here for, what, now, some 7 years(?) to accurately characterize my political or judicial beliefs. :smiley:

Hmm, well, you can feel that way if you like. I, personally find all aspect of law interesting, and only find lawyers frustrating when they use specious arguments instead of addressing issues. :wink:

DSYoungEsq, I’m missing the distinction. In the first case, the court would have to come up with some kind of test to place this restriction on Congressional power to spend money as it sees fit. How is that different than placing a restriction on Congressional ability to affect someone’s DP rights?

…I defy any of you who’ve seen me post here for, what, now, some 7 years(?) to accurately characterize my political or judicial beliefs…QUOTE]


You keeping this up doesn’t mean we’re going dancing in Chelsea, though.

Hehehe, and I know that they will be there, because the baker ain’t getting any time off soon…

By the way, as a completely off-topic aside, I warn you, Rick, that I have found and dusted off my old copy of American Constitutional Law, 1978 ed., written by some hack named Scribe, or maybe it was Clan, something like that. All I remember is he comes from some snooty place like Hahvahd and drives Conservatives nuts… Should make my answers more, um, interesting at times… :smiley:

By that definition hasn’t every ruling overturning a law on constitutional grounds been judicial activism? It seems to me that we are talking about degrees of the same thing. A conservative Judge may find a right to soft core porn in the first amendment while a liberal judge may find a right to hard core porn. The liberal might be decried as a judicial activist but the conservative judge did the same thing but to a slightly smaller degree. I tend to agree with Polycarp, Judicial activism is usually cried when a judgement goes beyond what a person thinks should have been ruled.

It may not be exactly what is meant by it…but it is certainly a big part of it. Are you going to tell us that all that stuff about letting the people decide through their elected representatives rather than having judges decide is just B.S.?

Yes, I know that there are other issues here…such as federal vs. states rights. And, clearly it would be useful to see what the particular decisions in question were. But, at first glance, those numbers seem a bit damning to me. At the very least, they call out for closer study.

I’ve rewritten this post four times.

Maybe only scholars and lawyers really know what activist judges are.

But the rest of the country is being lead to believe that we know and I don’t think that we really do.

In my opinion, any judge that wants to shove her or his religion onto me at the courthouse door – even if it happens to be part of my own faith – is an activist judge.

YMMV – And that’s part of the problem for everybody.


So is it more like pornography, then?

I’ve always held that “judicial activism” means “the judge did something I don’t like”. The fact is that every judge cites precedent in every decision they make - Harry Blackmun said he based his decision in Roe v. Wade on the original intent of the Constitution.


When I say, “Activist judge” I refer specifically to a judge that relies on methods of constitutional interpretation that expand the Constitution far beyond what a reasonable reading of the specific text of the document says. I believe the Constitution means what its text says.

So: if Judge A overturns a federal law that establishes an official national religion, he is, yes, overturning an act of Congress. But he is doing so because it clearly conflicts with the text of Amendment I.

If Judge B overturns a state law that permits medical marijuana as long as its grown, processed, and used wholly within that state, then he is an activist judge: the Constitution does not give the federal government the power to interfere in intratstate commerce.

And so forth. It’s entirely irrelevant how many decisions overturning laws a particular judge has authored. The only relevant question is: on what basis did the judge overturn the law?