# Judicial activism and conservative judges **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2005, 1:34am UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835 "2005-11-01T01:34:23Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 7:27pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/41 "2005-11-01T19:27:20Z")
> [@Hamlet](#): > > I’m assuming you’d go with, despite the 9th amendment, that if a right isn’t in the Constitution, it isn’t really a right? I’d say if a right isn’t in the federal Constitution, it isn’t a federal constitutional right. Nothing prevents the states and Congress from enshrining rights as they deem fit. > [@](#): > > Surely part of the role of the judiciary is to act as protector of the rights of individuals? No. The role of the judiciary is to interpret the law. > [@](#): > > And, just as surely, the Constitution is clear that the Bill of Rights is not a complete list of rights, correct? What rights are there that aren’t in the Constitution? Any? Sure, plenty. All arise from their enactment into law. The right to an unbiased jury. The right to drive, the right to vote. > [@](#): > > I agree that policy should not be the deciding factor into what rights are protected by the Constitution. But I’m not going to say that what is a right is to be determined by whether or not it is specifically listed in the Bill of Rights alone, especially when the Constitution itself says that’s not so. And personally, I’d be terrified to live in a country where your mode of judicial determination carried the day. Here’s where we always get stuck. If we adopt my system, then the legislature has to do its job. And they are accountable to the people. If we adopt your system, the judiciary has the presumptive ability to write the supreme law of the land… and they are accountable to no one; they cannot be removed. Why is your system better? ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [November 1, 2005, 7:45pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/42 "2005-11-01T19:45:10Z")
> [@Bricker](#): > > 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? Come on…This is avoiding the issue. The number is certainly somehow indicative of the judge’s tendency to overturn the laws and the numerical differences aren’t small here. Thomas is voting to overturn them almost 65% of the time whereas Breyer is voting to overturn them 28% of the time. I suppose it is numerically possible that nearly all of Breyer’s 28% correspond to cases on which you would view this as engaging in judicial activism and almost none of Thomas’s would. But then, why don’t you try to make this case? ---
**Author:** ![Raja\_Raja\_Chola](https://avatars.discourse-cdn.com/v4/letter/r/e480ec/32.png) [@Raja\_Raja\_Chola](https://boards.straightdope.com/u/Raja_Raja_Chola)\ **Post date:** [November 1, 2005, 7:46pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/43 "2005-11-01T19:46:27Z")
> [@Bricker](#): > > If we adopt your system, the judiciary has the presumptive ability to write the supreme law of the land… and they are accountable to no one; they cannot be removed. > > Why is your system better? I don’t quite agree with you here. Even when the judiciary enshrines a right in the Constitution, the legislatures can and do whittle and narrow that right. It’s not a clear-cut fiat, but rather a push-and-pull between the legislatures and the executive and the courts. Personally, I’m not crazy about this. But then, I didn’t write a vague constitution or adopt a common law/equity system at a time period when Natural Law principles were heavily imbued in the courts. I wouldn’t mind some of these more narrow readings of the consitution in theory, but I’d require a complete rewrite of the thing for me to accept it in practice. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 7:51pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/44 "2005-11-01T19:51:28Z")
> [@Bricker](#): > > I’d say if a right isn’t in the federal Constitution, it isn’t a federal constitutional right. Nothing prevents the states and Congress from enshrining rights as they deem fit. And the Ninth Amendment? > [@Bricker](#): > > No. The role of the judiciary is to interpret the law. And the Constitution too? And in interpreting the Constitution necessitates determining the existance and extent of the rights of its citizens. > [@Bricker](#): > > Sure, plenty. All arise from their enactment into law. The right to an unbiased jury. The right to drive, the right to vote. So the Constitution only protects rights that are enshrined within? All others are left to the whim of the legislatures? Where’d you get that idea? > [@Bricker](#): > > Here’s where we always get stuck. If we adopt my system, then the legislature has to do its job. And they are accountable to the people. Look how well that’s worked out. Well, let me rephrase. Look how well that worked out if your a minority. > [@Bricker](#): > > If we adopt your system, the judiciary has the presumptive ability to write the supreme law of the land… and they are accountable to no one; they cannot be removed. No. No. No. Every time we go around this, you come back to the canard that there are no limits on the judicial power. I’ve explained, only about 300 times now, that, yes, indeed there are limits. Unless you’ve had some kind of epiphany in the last 20 minutes, I suspect you’ll never get it. > [@Bricker](#): > > Why is your system better? My system is the one enshrined in the Constitution. Where the judiciary acts a check and balance on the legislature. Where the rights of a country’s citizens are protected from the tyranny of the majority. Where the co-equal branch of the judiciary isn’t a rubber stamp on every action the legislature takes. 200+ years ago, some people debated these very issues, and decided that the decisions of the majority should be enacted, but that the rights of the minorities should be protected. They were also afraid that some people would be unable to get beyond the idea that the Bill of Rights was an exclusive list of rights that can be protected from the majority, so they tried to make sure that didn’t happen. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 7:58pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/45 "2005-11-01T19:58:34Z")
> [@Bricker](#): > > Here’s where we always get stuck. If we adopt my system, then the legislature has to do its job. And they are accountable to the people. > > If we adopt your system, the judiciary has the presumptive ability to write the supreme law of the land… and they are accountable to no one; they cannot be removed. First, it isn’t a matter of \*adopting \* that system, that _is_ the system. If the legislative or executive branches haven’t acted on a matter, there’s no one left to apply the law (which implies adding definition) than the judicial. And even then it isn’t final. If the legislative and executive disagree with a ruling, then in their roles as hirees of the people they can always pass legislation, or amendments, to supersede it. They can do so either before or after the court ruling, in fact, or in complete disregard of its timing or even existence. The courts can do nothing to overrule the legislative’s and executive’s and states’ combined will, if it’s strong enough. There is no fundamental conflict there, or choice to be made. The alternative you demand instead would be to force essentially any case but the most cut and dried to be ruled upon by Congress instead of the courts. Not by constitutional scholars or experienced lawyers, but by the likes of surgeons and insect exterminators, under political pressures (including fundraising pressures) that would have no effective counterbalance in the realm of analysis of precedent, much less judicial philosophy. But the judicial branch would be pure, I suppose - what remains of it. Have you _really_ thought through the consequences? ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [November 1, 2005, 7:58pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/46 "2005-11-01T19:58:52Z")
> [@Bricker](#): > > But remember that I’m not advocating a blanket reversal of every case of judicial activism we’ve seen. Today, we’ve built a tower on top of _Griswold._ Hmmm. Does that mean it’s potentially “activist” to reverse the results of earlier “activism”, as long as there’s now a jurisprudential “tower” on top of the results? How big does the tower have to be? How do you determine which cases of judicial activism you **do** want reversed, and which ones you don’t? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 8:02pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/47 "2005-11-01T20:02:37Z")
> [@Bricker](#): > > In a manner of speaking, yes. > > _Gonzales v. Raich_’s result is absolutely compelled by _Wickard v. Filburn_, which was undoubtedly activist. Let’s look at this a second. I agree that the _Gonzales_ result was compelled by _Wickard_, and I agree that _Wickard_ was undoubtedly activist. But why did Scalia? You see, my overriding judicial philosophy is a belief in _stare decisis_ - **certainty** in the law is a compelling interest. I think scads of Supreme Court decisions were wrongly decided, but I would be opposed to overturning almost all of those decisions, for the simple reason that society has ordered itself around those (bad) decisions being the law of the land. Thus Associate Justice SuaSponte would have been compelled to reach the _Gonzales_ result. But Associate Justice Scalia doesn’t agree with me. He thinks that _stare decisis_ is of lesser import than faithful application of the text of the Constitution. He certainly doesn’t think that _Roe_ or _Miranda_ or _Casey_ compells him to reach opinions consistent with those decisions. So how could _Wickard_ possibly compel him to his concurrance in _Gonzales_? Scalia is a judicial activist of the worst sort - his activism is not principled. While he loudly declaims that he has a strict and stern judicial philosophy, _Gonzales_ and numerous other decisions demonstrates that he is truly a results-oriented judge. And, IMO, that is the true definition of a “judicial activist”. An activist judge decides cases based upon the _result_ the judge wishes to reach. Period. Sua ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:06pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/48 "2005-11-01T20:06:52Z")
> [@jshore](#): > > Come on…This is avoiding the issue. The number is certainly somehow indicative of the judge’s tendency to overturn the laws and the numerical differences aren’t small here. Thomas is voting to overturn them almost 65% of the time whereas Breyer is voting to overturn them 28% of the time. I suppose it is numerically possible that nearly all of Breyer’s 28% correspond to cases on which you would view this as engaging in judicial activism and almost none of Thomas’s would. But then, why don’t you try to make this case? AGAIN: “overturning the law” has NOTHING TO DO WITH “ACTIVISM.” Zero. The only question is: on what BASIS was the law overturned. There is no reason to suppose a high number means anything. There is no reason to suppose a low number means anything. I can imagine a judge that has voted to overturn laws 100% of the time not being activist; I can imagine a judge upholding laws 100% of the time BEING activist. The question is: what is the rationale applied? Congress passes a law requiring printed material that criticizes the President to be submitted to a special committee before publication. The ACLU sues, and Judge A upholds the law. Judge A is an ACTIVIST JUDGE, even though he’s not voting to overturn a law. Get it? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 8:09pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/49 "2005-11-01T20:09:13Z")
Oh, okay, so it’s the \*lower \* courts that have a distressing tendency to be activist and therefore must be overturned, not the \*Supreme \* Court. That follows inevitably. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:12pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/50 "2005-11-01T20:12:27Z")
> [@Hamlet](#): > > No. No. No. Every time we go around this, you come back to the canard that there are no limits on the judicial power. I’ve explained, only about 300 times now, that, yes, indeed there are limits. Unless you’ve had some kind of epiphany in the last 20 minutes, I suspect you’ll never get it. You know what? Try one more time. I will focus on your answer and do my best to understand it. What, precisely, are the limits on the judiciary’s power if I accept your view of how judges may interpret the Constitution? The only pre-emptive strike I’ll make is this one: please do NOT suggest that the judiciary’s own wisdom, limiting itself for the good of the country, should be considered a “limit”. Apart from that, I’m all ears. And eyes. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [November 1, 2005, 8:12pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/51 "2005-11-01T20:12:56Z")
> [@Bricker](#): > > The only question is: on what BASIS was the law overturned. Then I repeat: why do you say that you would **not** support the reversal of some decisions overturning laws on the basis of what you call judicial activism? I do not see how you can simultaneously be opposed to judicial activism and opposed to reversing what you consider activist decisions, such as _Griswold_. Again, on what basis do you decide which results you would like to see reversed, and which ones you wouldn’t? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:16pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/52 "2005-11-01T20:16:10Z")
> [@Kimstu](#): > > Hmmm. Does that mean it’s potentially “activist” to reverse the results of earlier “activism”, as long as there’s now a jurisprudential “tower” on top of the results? > > How big does the tower have to be? How do you determine which cases of judicial activism you **do** want reversed, and which ones you don’t? I don’t think there’s a bright-line answer. It depends on how big the tower is, and how wide. By that I mean: how many cases have upheld the precise precedent, and how many have relied on its reasoning to decide related issues? I’d also ask how much reliance is placed on the result in the real word - what sort of upset would result from a change. But, yes - it would certainly be activist now to strip out _Griswold_’s right to privacy after so many cases and principles now rely upon it. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 8:16pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/53 "2005-11-01T20:16:15Z")
> [@Bricker](#): > > You know what? > > Try one more time. I will focus on your answer and do my best to understand it. > > What, precisely, are the limits on the judiciary’s power if I accept your view of how judges may interpret the Constitution? > > The only pre-emptive strike I’ll make is this one: please do NOT suggest that the judiciary’s own wisdom, limiting itself for the good of the country, should be considered a “limit”. > > Apart from that, I’m all ears. And eyes. And the rest of my post? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 1, 2005, 8:18pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/54 "2005-11-01T20:18:05Z")
> [@ElvisL1ves](#): > > If the legislative and executive disagree with a ruling, then in their roles as hirees of the people they can always pass legislation, or amendments, to supersede it. I know I am going to be sorry for asking, but - Are you suggesting that the state of Utah could simply pass legislation outlawing abortion because they disagreed with Roe v. Wade? And that would serve as a check on the unbridled power of the Court? What other measures might they adopt? Secession? Regards, Shodan ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 8:20pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/55 "2005-11-01T20:20:32Z")
> [@Bricker](#): > > You know what? > > Try one more time. I will focus on your answer and do my best to understand it. > > What, precisely, are the limits on the judiciary’s power if I accept your view of how judges may interpret the Constitution? > > The only pre-emptive strike I’ll make is this one: please do NOT suggest that the judiciary’s own wisdom, limiting itself for the good of the country, should be considered a “limit”. > > Apart from that, I’m all ears. And eyes. Stare decisis. Sua ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 8:20pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/56 "2005-11-01T20:20:33Z")
> [@Shodan](#): > > Are you suggesting that the state of Utah could simply pass legislation outlawing abortion because they disagreed with Roe v. Wade? Not the state acting by itself, but the federal government could certainly pass the enabling amendment to the US Constitution with enough states ratifying it - and the Supremes would have no option but to rule an abortion ban constitutional. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 8:22pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/57 "2005-11-01T20:22:14Z")
> [@Bricker](#): > > I don’t think there’s a bright-line answer. It depends on how big the tower is, and how wide. But a century’s worth of what you call substantial due process is not big enough or wide enough for you, obviously. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:25pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/58 "2005-11-01T20:25:41Z")
> [@Hamlet](#): > > And the Ninth Amendment? Madison’s commentary on the issue: > [@](#): > > It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. The Ninth Amendment creates a rule of construction. It shows that the Bill of Rights does not increase the powers of the national government in areas not explicitly enumerated. The Ninth does not itself have any guarantee of rights, named or unnamed. > [@](#): > > And the Constitution too? And in interpreting the Constitution necessitates determining the existance and extent of the rights of its citizens. The Constitution is simply the supreme law of the law. It is law, and is interpreted just like other law. > [@](#): > > So the Constitution only protects rights that are enshrined within? All others are left to the whim of the legislatures? Where’d you get that idea? Where’s you get a definitive list of the rights that you found in there? The ones that no author of the document would have been in agreement with, and no elected official ever gave his assent to? > [@](#): > > Look how well that’s worked out. Well, let me rephrase. Look how well that worked out if your a minority. No system is perfect. I regard the right of the people to govern themselves as one of vital significance. > [@](#): > > My system is the one enshrined in the Constitution. Where the judiciary acts a check and balance on the legislature. Where the rights of a country’s citizens are protected from the tyranny of the majority. Where the co-equal branch of the judiciary isn’t a rubber stamp on every action the legislature takes. 200+ years ago, some people debated these very issues, and decided that the decisions of the majority should be enacted, but that the rights of the minorities should be protected. They were also afraid that some people would be unable to get beyond the idea that the Bill of Rights was an exclusive list of rights that can be protected from the majority, so they tried to make sure that didn’t happen. My system is the one enshrined in the Constitution, bud. Yours is the one changing it, re-writing it at your whim, to promote social policies you favor at any given moment. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 1, 2005, 8:28pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/59 "2005-11-01T20:28:27Z")
> [@ElvisL1ves](#): > > Not the state acting by itself, but the federal government could certainly pass the enabling amendment to the US Constitution with enough states ratifying it - and the Supremes would have no option but to rule an abortion ban constitutional. But it wasn’t the United States that wanted to ban abortions, it was one particular state, a sovereign political entity, and the will of that entity was thwarted by justices who weren’t apointed by the polity, can’t be removed by the polity, and whose results can’t be negated by the polity in question. People who defend what the Supreme Court does when it acts in liberal fashion on the basis that it should be allowed to behave as it desires, subject only to the political controls inherent in the Constitution (e.g.: impeachment) simply make the discussion easy for people who wish to reign in the ability of the Supreme Court to act in liberal fashion. The proper, indeed, the ONLY legitimate response to those who decry “judicial activism” is to assert, quite simply, that words can be both liberally and conservatively interpreted, and neither is an _inherently_ correct way of proceeding. This leaves plenty of room for debate as to what to do in given cases, without getting hung up on red herrings, and without allowing the justices some sort of essentially unfettered power they’ve never abrogated to themselves anyway. 😉 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:31pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/60 "2005-11-01T20:31:25Z")
> [@SuaSponte](#): > > Stare decisis. > > Sua If that were so, how is it that _Lawrence v. Texas_ exists? The issue was settled in _Bowers_. [Previous page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=2) [Next page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=4)