# 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:** 6
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [November 2, 2005, 3:32am UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/101 "2005-11-02T03:32:52Z")
I’m perfectly happy, after all this, to accept that “overturning a law” is not “judicial activism.” Unfortunately, it still seems like explanations of what “judicial activism” is are pornography. That is to say, the observer knows what it is when he or she sees it. Obviously **Bricker** has an opinion about what it is. Is **Bricker’s** definition _the_ definition for all his tighty righty bretheren? Also, judicial activism aside, I still find it interesting that the overturning of laws by the Supreme Court breaks down so clearly with conservatives doing so more frequently and liberals less so. If not “judicial activism,” what does explain this apparent relationship (accepting that it is a small sample of people, if not decisions)? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 2, 2005, 2:20pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/102 "2005-11-02T14:20:45Z")
> [@DSYoungEsq](#): > > Since you neither define “arrogation”, nor do you explain how it can be an arrogation of power to do what the writers of the constitution intended, and what logic essentially dictated, this is nothing more than an unsupported assertion, which you are good at, but which is meaningless. 😉 Hokay, after a pause for a quiet laugh at all that bluster, let’s focus on that phrase “What the writers of the constitution intended”. Where the hell do you get that from? The text? Originalist interpretation? Penumbras and emanations? No, only from one reading of a political tradition with an entirely different foundation. Meanwhile, you’re objecting to a characterization of Marbury as arrogation of power when you don’t even offer a definition of your own. IOW, you’re just pounding the table again, Counselor. > [@](#): > > What YOU fail to remember is that it wouldn’t BE a violation of the Constitution in the absence of the unjustified expansion of federalist power by the Supreme Court (so the theory goes). So, to assert that the State of Utah (or wherever) should accept that it is not aggrieved by an expansive reading of Constitutional protections put in place by judicial activists on the bench because the Civil War said it had to submit to federal law is just plain ridiculous. Yes, that certain is ridiculous, which may be why nobody has said it. :rolleyes: Nobody said Utah should not be aggrieved, only that they have to suck it up and live with it. Just the way it is, guys. Losers lose. They would have had their chance to make a case, and under \*\*Shodan’s \*\* scenario, would have lost. Out of curiosity, what’s the fancy legalese Latin term for “Tough shit, Charlie”? ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 2, 2005, 2:44pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/103 "2005-11-02T14:44:45Z")
> [@Hentor the Barbarian](#): > > Also, judicial activism aside, I still find it interesting that the overturning of laws by the Supreme Court breaks down so clearly with conservatives doing so more frequently and liberals less so. If not “judicial activism,” what does explain this apparent relationship (accepting that it is a small sample of people, if not decisions)? There are two basic categories: laws that are properly overturned because they clearly violate the Constitution, and laws that are improperly overturned because they offend the judge’s political opinions. It would be necessary to look at enough cases to sort out a statistically significant sampling of both types – and also to consider cases of proper and improper refusal to overturn a law – to reach a meaningful conclusion. Both sides have been guilty of each type of error (e.g. in my judgment, _Lochner_ is an example of conservatives improperly overturning a constitutional law; _Lucas v. Colorado General Assembly_ is an example of liberals improperly overturning a constitutional law; _Raich_ is an example of conservatives improperly failing to overturn an unconstitutional law; _Kelo_ is an example of liberals improperly failing to overturn an unconsitutional law); the question is whether one side is more prone to error than the other. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 2, 2005, 3:08pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/104 "2005-11-02T15:08:39Z")
> [@Steve MB](#): > > Both sides have been guilty of each type of error (e.g. in my judgment, _Lochner_ is an example of conservatives improperly overturning a constitutional law; _Lucas v. Colorado General Assembly_ is an example of liberals improperly overturning a constitutional law; _Raich_ is an example of conservatives improperly failing to overturn an unconstitutional law; _Kelo_ is an example of liberals improperly failing to overturn an unconsitutional law); the question is whether one side is more prone to error than the other. Good research! My only comment would be that _Lucas v. Colorado General Assembly_ really arose from _Reynolds v. Sims_. That’s the case with the smoking gun, so to speak. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 2, 2005, 3:10pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/105 "2005-11-02T15:10:55Z")
> [@Hentor the Barbarian](#): > > I’m perfectly happy, after all this, to accept that “overturning a law” is not “judicial activism.” Unfortunately, it still seems like explanations of what “judicial activism” is are pornography. That is to say, the observer knows what it is when he or she sees it. Obviously **Bricker** has an opinion about what it is. Is **Bricker’s** definition _the_ definition for all his tighty righty bretheren? There are undoubtedly people who count themselves on my side of the fence who will wail, “Judicial activism!” when a court issues a ruling they don’t like, regardless of the rationale used to reach that decision. Unfortunately, neither of us can claim to represent a “side” completely free of loud-mouth idiots. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 2, 2005, 3:27pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/106 "2005-11-02T15:27:36Z")
> [@Bricker](#): > > There are undoubtedly people who count themselves on my side of the fence who will wail, “Judicial activism!” when a court issues a ruling they don’t like, regardless of the rationale used to reach that decision. Unfortunately, neither of us can claim to represent a “side” completely free of loud-mouth idiots. A quick thought for all discussing this: can we arrive at some consensus approach by working **from** the extremes inward? For example: Given the actual findings in the Newdow case, **any** ruling on the substantive issue would have been “judicial activism” – deciding to rule on the constitutional issue when an avenue of judicial self-restraint, the ‘standing’ question, beckoned. Would there be general consensus that this is true? The case (name doesn’t come to mind, but I’m sure Dopers-at-Law will be quick to identify it) where Mr. Justice Douglas gave standing to trees in an environmental case. No doubt to me that that was judicial activism, however much I might agree with the results. For me, “judical activism” constitutes **any case in which the court takes action beyond the minimum necessary to resolve the case** – however much and however little that minimum may be. “Judicial self-restraint,” on the other hand, constitutes a ruling that constitutes that minimum. In cases where a serious question **must** be resolved, the “activist” position is the one that overrules legislative findings or _stare decisis_; the “self-restraint” one, the position which upholds them. Any thoughts in this regard? ---
**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 2, 2005, 3:45pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/107 "2005-11-02T15:45:33Z")
> [@Polycarp](#): > > The case (name doesn’t come to mind, but I’m sure Dopers-at-Law will be quick to identify it) where Mr. Justice Douglas gave standing to trees in an environmental case. No doubt to me that that was judicial activism, however much I might agree with the results. [Sierra Club v. Morton](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/sierraclub.html) > [@Polycarp](#): > > For me, “judical activism” constitutes **any case in which the court takes action beyond the minimum necessary to resolve the case** – however much and however little that minimum may be. “Judicial self-restraint,” on the other hand, constitutes a ruling that constitutes that minimum. In cases where a serious question **must** be resolved, the “activist” position is the one that overrules legislative findings or _stare decisis_; the “self-restraint” one, the position which upholds them. > > Any thoughts in this regard? I think it’s a very good point, and a solid, workable definition of judicial activism. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 3:49pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/108 "2005-11-02T15:49:01Z")
> [@](#): > > There are two basic categories: laws that are properly overturned because they clearly violate the Constitution, and laws that are improperly overturned because they offend the judge’s political opinions. I don’t think this is right, and I think it perpetuates the Langdellian myth that interpretation of the law is always simply a matter of mechanistic application of principle to facts. There may be a very few judicial opinions that are nakedly political, but in general your two basic categories should be 1) laws that are overturned and clearly violate the Constitution (even though it apparently wasn’t clear to the legislature), and 2) laws that are overturned and _less_ clearly violate the Constitution. Reasonable judges can reasonably disagree about whether something is violative of a constitutional provision; no sinister, political motive is necessary. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 3:52pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/109 "2005-11-02T15:52:57Z")
**Hamlet:** > [@](#): > > I think it’s a very good point, and a solid, workable definition of judicial activism. I disagree with this as well. I think it’s a solid, workable definition of judicial minimalism. But the more minimal the decision, and the narrower the resulting legal principle, the less likely you are to have consistent and predictable application of that principle to like cases in the future. And consistency and predictability – certainty, in **Sua’s** formulation – are bedrock interests when it comes to crafting caselaw. Otherwise every opinion would be like _Bush v. Gore_ – “this ticket’s good for one ride only.” ---
**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 2, 2005, 4:02pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/110 "2005-11-02T16:02:30Z")
> [@Gadarene](#): > > I disagree with this as well. I think it’s a solid, workable definition of judicial minimalism. Great point. I still think that non-adherence to the limits placed on the judiciary and litigants by the Constitution is a better way to describe judicial activism than any of the alternatives metioned, though. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 4:14pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/111 "2005-11-02T16:14:37Z")
> [@](#): > > I still think that non-adherence to the limits placed on the judiciary and litigants by the Constitution is a better way to describe judicial activism than any of the alternatives metioned, though. Oh, sure. Maybe it’s just that I tend to believe that most judges – realist or formalist, liberal or conservative – are acting in good faith to interpret and apply those limits on themselves. The Constitution – and this will come as no surprise to you – is not a document that’s replete with details. It leaves a _lot_ of room for competing interpretations. Hell, we can’t even say with certainty the extent to which Congress can, for example, limit the jurisdiction of the Supreme Court – look at the raging debate between law professors on the topic (Sager, Amar, Meltzer, Tushnet, Friedman, Redish, etc.). And Article III is relatively straightforward. It’s tough to accept the notion that there’s a transparent and externally derivable set of “limits placed on the judiciary and litigants by the Constitution” on which all right-minded people can agree, any deviation from which smacking of untoward activism. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 2, 2005, 4:15pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/112 "2005-11-02T16:15:29Z")
> [@Hamlet](#): > > No, it’s not. It’s a Constitution, not a law. > [@The US Constitution](#): > > The Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land… You really aren’t a textualist, are you? 😃 > [@Hamlet](#): > > Answer the question, counselor: 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? The Tenth Amendment. > [@Hamlet](#): > > Is this another one of those rhetorical flourishes of yours? That somehow anyone who has the audicity to disagree with you doesn’t regard the right of the people to govern themselves as one of vital significance. When did you turn into **Shodan**? Of course self-governance is of vital significance. Self-governance, sure. Governance by judges, not so much. Regards, Shodan ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 4:27pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/113 "2005-11-02T16:27:37Z")
Tenth Amendment only deals with the states, **Shodan**. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 2, 2005, 4:36pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/114 "2005-11-02T16:36:18Z")
> [@Gadarene](#): > > Tenth Amendment only deals with the states, **Shodan**. > [@The US Constitution](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, **or to the people**. Okay, so you aren’t a textualist either. 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 2, 2005, 4:36pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/115 "2005-11-02T16:36:44Z")
> [@Polycarp](#): > > For me, “judical activism” constitutes **any case in which the court takes action beyond the minimum necessary to resolve the case** – however much and however little that minimum may be. “Judicial self-restraint,” on the other hand, constitutes a ruling that constitutes that minimum. In cases where a serious question **must** be resolved, the “activist” position is the one that overrules legislative findings or _stare decisis_; the “self-restraint” one, the position which upholds them. I would disagree. As **Gadarene** pointed out, this is a definition of judicial minimalism. A better definition of judicial activism is where a judge reaches a decision based upon a preference for the result, rather than on proper application of law and precedent. One of the advantages of this definition is that it is nonpartisan. Sua ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 4:44pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/116 "2005-11-02T16:44:03Z")
**Shodan:** > [@](#): > > Okay, so you aren’t a textualist either. Heh. 😃 Fair enough – I meant, “only deals with the state legislatures and does not deal with Congress.” To put it in broad shorthand, the Tenth is a federalism amendment, not a separation of powers amendment. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [November 2, 2005, 4:44pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/117 "2005-11-02T16:44:42Z")
> [@SuaSponte](#): > > I would disagree. As **Gadarene** pointed out, this is a definition of judicial minimalism. A better definition of judicial activism is where a judge reaches a decision based upon a preference for the result, rather than on proper application of law and precedent. One of the advantages of this definition is that it is nonpartisan. > > Sua What is a reliable way to induce the private preferences of the judge from the outcome of the decision? It is not difficult to imagine that in a world where so-called judicial activism is subject to derision, judges will craft their written opinions to conceal their results orientation. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 2, 2005, 4:46pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/118 "2005-11-02T16:46:51Z")
**Sua:** > [@](#): > > A better definition of judicial activism is where a judge reaches a decision based upon a preference for the result, rather than on proper application of law and precedent. This seems to be my hobby horse for the moment: define “proper.” ---
**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 2, 2005, 4:49pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/119 "2005-11-02T16:49:35Z")
> [@Shodan](#): > > The Tenth Amendment. For those who can’t follow your staggering intellect, explain to me how the 10th Amendment works to limit the rights of citizens? And how you determined that an Amendment that deals with federalism suddenly works to limit the definition of Constitutional rights, especially given the 9th Amendment. Thanks. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 2, 2005, 5:00pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/120 "2005-11-02T17:00:58Z")
> [@ElvisL1ves](#): > > Hokay, after a pause for a quiet laugh at all that bluster, let’s focus on that phrase “What the writers of the constitution intended”. Where the hell do you get that from? The text? Originalist interpretation? Penumbras and emanations? No, only from one reading of a political tradition with an entirely different foundation. Meanwhile, you’re objecting to a characterization of Marbury as arrogation of power when you don’t even offer a definition of your own. IOW, you’re just pounding the table again, Counselor. Those who are actually reading what I write, instead of reacting to it as you always do, may recall that I pointed out that, of those at the Convention who discussed anything touching the issue of judicial review were in support of some form of it. Thus, we can say with some certainty that the “writers of the Constitution” did, indeed, intend that judicial review of some sort be a part of the plan. After all, in a conflict between law made by Congress, and the words of the Constitution, someone has to be imbued with the power to resolve the dispute, _n’est-ce pas_? > [@ElvisL1ves](#): > > Yes, that certain is ridiculous, which may be why nobody has said it. :rolleyes: Nobody said Utah should not be aggrieved, only that they have to suck it up and live with it. Just the way it is, guys. Losers lose. They would have had their chance to make a case, and under \*\*Shodan’s \*\* scenario, would have lost. Missing, of course, the whole point of what I was saying (that old reacting, not reading and digesting thing again, yanno?). As a review: A State (we’ll use Utah, it’s as good as any) passes a law which limits the ability of a woman to get an abortion. There is, in the United States Constitution no specific prohibition of such state action. Nor is there even any prohibition of state actions in general that can easily be characterized as including restricting the ability to legally abort a fetus. Nevertheless, Ms. Coe, a woman in Utah, feeling that she should have the ability to choose how to deal with an unwanted pregnancy, files a lawsuit requesting that the law passed by the Utah Legislature be declared null and void, as it violates the United States Constitution, specifically Amendment 14 thereof. After extensive legal wrangling, the matter appears before the Supreme Court of the United States, which accepts the jurisdicition of the issue under Article III, Section 2 (“Cases,…, arising under this Constitution”) and proceeds to a hearing of the issue. After due consideration, a majority of the justices issue an opinion in the case determining that they believe that the general concepts inherent in the specifically stated “rights” enumerated in the first eight amendments to the Constitution can be stated to generally protect a “right of privacy” sufficient to protect pregnant women’s decision on abortion. Referring to Amendment Nine, the justices conclude that this general right to privacy precludes the United States Government, and, by extension of the principle to the concepts of “liberty” and “due process” found in the Fourteenth Amendment, the government of the State of Utah, from interfering with the ability of a woman to abort a fetus. I presume no one has any serious willingness to believe that such a decision would not be viewed as a case of “judicial activism” by Mr. **Bricker** and those with similar views? Leaving aside certain words that inflame passion, it would certainly be viewed as an attempt to liberalize the law on the subject of Fourteenth Amendment restrictions on state governments. It would, in short, be anything but a strict interpretation of the written words found in the Constitution. Now, in post #45, you asserted: > [@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. **Shodan** , in post #54 took exception, asking how Utah should proceed if it wanted to pass a law banning abortion? The point being that Utah is not able to pass legislation superseding a ruling by the Supreme Court, nor can they amend the Constitution to override the ruling of the Supreme Court. You replied in post #56 that Utah itself could not do anything; it would have to be a co-operative effort between the federal government and the states. It was at this point that I chimed in. While your point was accurate, it missed the reason the issue was up for question. Specifically, _to the extent the federal judiciary can rule upon laws passed by the states, if it acts with “judicial activism,” the state affected cannot control the judiciary through the means you were suggesting can be used to control it_, namely by passing legislations or making amendments (presumably also including impeachment, control of purse strings, enabling legislation, etc.). So, it is disingenuous to assert that an “activist” judiciary is not a worry because it can be controlled by the legislative and executive branches whose actions are being overturned by the “activist” judges. Your response to all this that the states have to accept the law of the federal government is irrelevant. Indeed, it totally misses the whole POINT to the issue raised by **Shodan**. Without a check on the power, the power remains unchecked. From the standpoint of Utah, it isn’t enough to say, "well, tough shit, maybe if enough states decide to agree with you then you can reign in the “activist” judges. Indeed, that answer smacks of tyrrany of the majority, the very evil that the “Founders” went to great lengths to avoid. In short, while there are other ways to argue in favor of “judicial activism,” it isn’t enough to simply say, “there are checks upon such a problem,” without at least addressing how to check such “activism” when it affects an entity that doesn’t have the ability to engaging in a checking behaviour. 'Course, it would be nice if this lengthy attempt to clear away the bull shit that’s been piling up actually produced a thoughtful response instead of a jerky knee… 😛 [Previous page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=5) [Next page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=7)