# 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:** 8
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 2, 2005, 7:32pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/141 "2005-11-02T19:32:48Z")
> [@DSYoungEsq](#): > > An inaccurate analogy… Didn’t say it was a _precise correspondence_. Said “akin to”. If I say a zebra is akin to a horse, I am not saying a zebra _is_ a horse. Only that they are similar. Having caught you out on a niggling semantic point, I will be pleased to watch you bleed profusely. Sauce for the goose, which is akin to the gander. > [@](#): > > …And if your only argument against something is to assert your “superior understanding,” you virtually certainly manage to convince most readers you are wrong. 😛 I hereby explicitly state that I hold all such claims to superioir understanding to be suspect. If you have some evidence that I have convinced most readers of anything at all, you are free to produce it. ---
**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, 7:33pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/142 "2005-11-02T19:33:16Z")
> [@](#): > > In support of this argument, he asserts that people have a “right to choose what happens to themselves medically”. . . ." > [@](#): > > But it is remedy that is at issue, not right. I might be slow today. How is remedy at issue if people are asserting the existence of a controversial right? ---
**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, 7:33pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/143 "2005-11-02T19:33:39Z")
> [@DSYoungEsq](#): > > I was going to bother with a relatively comprehensive dismissal of your last post, addressing each and everything you said, when it became rapidly clear it said nothing of real value, beyond a few salient points. > > Instead, I shall address those few points; the rest will remain on the floor with the rest of the bull shit, simply Piled Higher and Deeper. That is actually quite a magnanimous concession, especially considering the level with which you have approached this discussion. Since this is all even you think you have left, let us proceed: Let’s start with “arrogate.” The meaning of this word is to claim or sieze without justification. In short, you take it unto yourself in the absence of something else granting it to you. > [@](#): > > In short, _it already existed._ In deep hiding at best. Note that the Framers did not address it at all in the Constitution. Why ever would that be, d’ya suppose? > [@](#): > > In short, most everyone expected it, knew it was the logical outcome of what they had set up, and didn’t consider it a claim to a power to which there was no Constitutional justification. > > In short, it wasn’t arrogated. In short, they _acquiesced_ to a move that indeed had no basis in the Constitution’s text or “penumbrae”, despite your claim, but only in English political tradition. > [@](#): > > As to the rest of your post, depsite your clever attempts at _bon mots_ Is that legalese for “I’m just pounding the table here but won’t admit it”? > [@](#): > > You can’t use the existence of a federal-level check on the Court to argue that efforts by members of the court to engage in “judicial activism” in such a way that it affects individual states shouldn’t be a worry. You’ve backed down from shouting “tyranny” to expressing a “worry” now? :dubious: The states do have to accept federal law as binding upon them. It can’t be stated any more plainly, nor does it have to be. If they don’t like it, they can only either address it at a federal level or adjust themselves to it. Federal-level checks and balances on federal institutions are the only ones there are\* or can be\* if we have a federal government at all. What do you suggest instead, that we reinstate nullification? That’s what it sounds like. How about dumping this troublesome Constitution and restoring the Articles of Confederation? That would at least address your “worries” substantively. :rolleyes: Your objections would have fit in fine with the political discourse of 1855. In 2005, they’re simply amazing. And not necessarily in a good way. When come back, bring argument. ---
**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, 7:37pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/144 "2005-11-02T19:37:45Z")
> [@Gadarene](#): > > **DSYoung:** > Marshall’s reasoning in _Marbury_ is actually fairly controversial. When I was at Georgetown, the professors there staged an event entitled “Rearguing Marbury v. Madison” which effectively exposed the many holes in Marshall’s argument. Bullshit it did. No offense, but modern-day post hoc efforts to second-guess the decision are common. However, as Professor Tribe points out, “No one has formulated a stronger textual argument for the proposition that congressional interpretation is final, or for any other alternative.” And, further, “In the context of the time, therefore, _Marbury_ represented no novel seizure of power; indeed, the records of the Constitutional Convention itself suggest … that the Framers did not explicitly grant federal courts the power of judicial review because they took that power for granted.” (_American Constitutional Law_, 1978 ed… pp. 22-3). Where people get hung up with _Marbury_ isn’t really with the postulating of the power, but with the proper exercise of that power. As some might say, the devil is in the details. Inded, that exactly what this whole thread is about: Ok, you’ve got the power to declare a law unconstitutional. Now, what are you gonna do with it? ---
**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, 7:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/145 "2005-11-02T19:41:51Z")
> [@elucidator](#): > > Didn’t say it was a _precise correspondence_. Said “akin to”. If I say a zebra is akin to a horse, I am not saying a zebra _is_ a horse. Only that they are similar. Having caught you out on a niggling semantic point, I will be pleased to watch you bleed profusely. Sauce for the goose, which is akin to the gander. I didn’t say you had failed to make a precise correspondence. I said, politely, that you had failed to make an accurate analogy. In short, I said you had not illustrated a simlilarity; indeed, that your second statement was quite dissimilar to the first. Sorry you missed that… > [@elucidator](#): > > I hereby explicitly state that I hold all such claims to superioir understanding to be suspect. If you have some evidence that I have convinced most readers of anything at all, you are free to produce it. Hmmm, I enjoy commentary that advances an argument not at all. If you have something more to offer than your “superior understanding,” feel free to present it for inspection. I’m reasonable about such things. Really. 😉 ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/146 "2005-11-02T19:45:45Z")
> [@Gadarene](#): > > I might be slow today. How is remedy at issue if people are asserting the existence of a controversial right? I have a right in my hand. Everyone agrees it should be acknowledged. The issue is, who will grant me the remedy for the effort of the state to violate it? Judicial activists want the remedy to be the courts. Strict constructionalists want the remedy to be the legislatures, or the people, unless the Constitution explicitly addresses the issue. Am I making sense? If we were discussing the existence of the right, we wouldn’t be talking about the Ninth Amendment and the Tenth Amendment and their effect upon federal **power**. ---
**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, 7:57pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/147 "2005-11-02T19:57:49Z")
> [@ElvisL1ves](#): > > In deep hiding at best. Note that the Framers did not address it at all in the Constitution. Why ever would that be, d’ya suppose? As I posted above, Professor Tribe notes that the Framers didn’t bother because they took it for granted. I’ve said this about five times now; you’ve yet to say anything in response that attacks this, either with evidence to the contrary, or with reasoning that puts it in question. If you can’t provide either, I’m not going to bother reiterating. > [@ElvisL1ves](#): > > In short, they _acquiesced_ to a move that indeed had no basis in the Constitution’s text or “penumbrae”, despite your claim, but only in English political tradition. According to whom? The great ElvisL1ves, and his well-read text on Constitutional Law? I’ve provided evidence, support from noted authors, and you’ve provided your own opinion. Which is worth nothing. > [@ElvisL1ves](#): > > You’ve backed down from shouting “tyranny” to expressing a “worry” now? :dubious: The states do have to accept federal law as binding upon them. It can’t be stated any more plainly, nor does it have to be. If they don’t like it, they can only either address it at a federal level or adjust themselves to it. Federal-level checks and balances on federal institutions are the only ones there are\* or can be\* if we have a federal government at all. What do you suggest instead, that we reinstate nullification? That’s what it sounds like. How about dumping this troublesome Constitution and restoring the Articles of Confederation? That would at least address your “worries” substantively. :rolleyes: That you fail to comprehend I suppose should be amazing. :rolleyes: We aren’t talking about what states “have to accept.” No one doubts they have to accept federal law. The issue is what remedy for **abuse of power.** Adress that, if you please, else I won’t bother to respond to you. You’ll note, if you actually read my posts, I’ve already made this distinction at least three times… Oh, and you might try actually using reason, instead of pseudo-witty commentary. It gets you ever so much further. ---
**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, 8:07pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/148 "2005-11-02T20:07:24Z")
> [@Gadarene](#): > > **Sua:** > Quote: > 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.” Proper application of law and precedent is one that would get you a passing grade on a law school exam. As certain of our traitorous colleagues have confessed on the boards lately (damn you, **Minty Green**!! :D), what we do is not rocket science. > [@Maeglin](#): > > 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. Basically the same answer as to **Gadarene**. If you read an opinion and think, “wait a minute, that argument doesn’t flow from the precedent they are supposedly relying upon,” you have yourself an activist decision. Sua 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, 8:12pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/149 "2005-11-02T20:12:51Z")
**DSYoungEsq:** > [@](#): > > Bullshit it did. No offense, but modern-day post hoc efforts to second-guess the decision are common. However, as Professor Tribe points out, “No one has formulated a stronger textual argument for the proposition that congressional interpretation is final, or for any other alternative.” And, further, “In the context of the time, therefore, Marbury represented no novel seizure of power; indeed, the records of the Constitutional Convention itself suggest … that the Framers did not explicitly grant federal courts the power of judicial review because they took that power for granted.” (American Constitutional Law, 1978 ed… pp. 22-3). I don’t have the time or energy to tackle this discussion or to quote you competing exerpts from Fallon, Metzler, and Shapiro or from Tushnet, Sunstein, Seidman, and Stone. Suffice to say that it’s not nearly as clear a case as you make it out to be. My rule of thumb is that things are always more complicated than they seem. 🙂 **SuaSponte:** > [@](#): > > Proper application of law and precedent is one that would get you a passing grade on a law school exam. So – and this is crucial – judges could reach opposite results on the same question and both still be “properly” applying law and precedent, right? ---
**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, 8:14pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/150 "2005-11-02T20:14:18Z")
**Sua:** > [@](#): > > If you read an opinion and think, “wait a minute, that argument doesn’t flow from the precedent they are supposedly relying upon,” you have yourself an activist decision. Activist in _your_ eyes. Yours is an inherently subjective standard. Precedent, and its application to the facts at hand, is often far from clear. ---
**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, 8:18pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/151 "2005-11-02T20:18:49Z")
> [@Gadarene](#): > > **DSYoungEsq:** > I don’t have the time or energy to tackle this discussion or to quote you competing exerpts from Fallon, Metzler, and Shapiro or from Tushnet, Sunstein, Seidman, and Stone. Suffice to say that it’s not nearly as clear a case as you make it out to be. My rule of thumb is that things are always more complicated than they seem. 🙂 And yet, no one objected at the time. No state refused to grant its own supreme court judicial review powers. No amendment restricting such power was sent to President Jefferson, who surely would have signed it had the concept been so controversial. Given the dispatch with which the Eleventh Amendment was produced, this isn’t idle speculation, either. I say again, it’s all _post hoc_ reasoning. Fun for you and me to engage in, but meaningless as a real attack upon the actual decision at the time. 😃 ---
**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, 8:21pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/152 "2005-11-02T20:21:43Z")
> [@Gadarene](#): > > Do you acknowledge a difference, in theory if not in practice, between ‘recognizing existing rights’ and ‘creating new rights’? In theory, I don’t know, exactly. In practice, no. And in the context of this kind of discussion, neither is relevant. There is no meaningful distinction to be drawn between a right that exists but nobody recognizes, and a right that doesn’t exist. It’s like being inside a computer during a run, and arguing if an object exists somewhere but isn’t yet instantiated, or if it has never been written. It doesn’t matter, neither kind is going to have any effect. Same thing. It doesn’t change anything if rights don’t exist anywhere before we create them, or if they exist but nobody recognizes that they are there. Whether rights are being created _ex nihilo_ or merely brought to our attention in some way, both functions are properly those of the States or the people, for all rights not yet enshrined in the Constitution. > [@](#): > > Second, what does the phrase “or to the people” in the Tenth Amendment mean to you, practically and specifically? That the people of the US as a whole have the same power to establish rights as do the several states. I am thinking of things like amendment, obviously, as well as stuff like national referenda, or even to some degree having Congress express the national will by establishing some new right via legislation. Providing it didn’t conflict with some right already established in the Constitution, it would be legit. Thus, in my view, it would be perfectly legitimate for each state to decide whether or not to include a right to abortion or gay marriage or what have you for itself. Or for Congress to make it happen thru appropriate legislation. Regards, Shodan ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/153 "2005-11-02T20:29:06Z")
> [@SuaSponte](#): > > Basically the same answer as to **Gadarene**. If you read an opinion and think, “wait a minute, that argument doesn’t flow from the precedent they are supposedly relying upon,” you have yourself an activist decision. > > Sua > > Sua Um, no. I doubt that Mr. **Bricker** will go with you on that at all. “Judicial activism” is not a matter of being “unreasonable.” It is a matter of underlying assumptions to decision making. The “judicial activist” sees him/herself in the role of arbiter of competing viewpoints, wherein that role allows his/her own viewpoint a say in the result. He/she doesn’t limit a decision to looking at the text of the Constitution, the laws of Congress, the laws of the states, the regulations promulgated by administrations, the prior decisions of relevant courts, and applying this compilation of text to the facts of the case before him/her. Instead, he/she looks behind the text to the ideas it tries to express. He/she looks at society to see if old ways of thinking need to be modified to address new issues. in short, he/she engages in a subjective application of what he/she finds important principles to be, rooted in the law, but not derived directly from the text of same. A judicial activist issues _Brown v. Board of Education_. A judicial activist also issues _Lochner v. New York_. Both decisions were “reasonable” as long as you accept the underlying assumption of what review standards and methods will be used. ---
**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, 8:31pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/154 "2005-11-02T20:31:24Z")
> [@Gadarene](#): > > So – and this is crucial – judges could reach opposite results on the same question and both still be “properly” applying law and precedent, right? Ouch. I sense petard hoisting in process… 😃 ---
**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, 8:32pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/155 "2005-11-02T20:32:10Z")
> [@](#): > > And yet, no one objected at the time. This just isn’t true, at least with regard to the broader principle of judicial review. _Martin v. Hunter’s Lessee_ is a useful illustration. And take, for example, Fallon, Meltzer, and Shapiro’s footnote regarding the pre-_Marbury_ state of affairs: > [@](#): > > Several prominent scholars have argued that it was widely understood during the 1780s and 1790s that judicial nullification should occur only in cases of plain unconstitutionality [that is, that a higher standard of review should adhere when considering the constitutionality of legislation]. See, _e.g._, Snowiss, Judicial Review and the Law of the Constitution 13-44 (1990); Kramer, _Putting the Politics Back Into the Political Safeguards of Federalism_, 100 Colum. L. Rev. 215, 240 (2000); Wood, _The Origin of Judicial Review Revisited, or How the Marshall Court Made More of Less_, 56 Wash. & Lee L. Rev. 787, 798-99 (1999). The Federal Courts and the Federal System 12 n.69 (5th ed. 2003). The text goes on to examine _Marbury_ in detail in pp. 55-73. Besides, my argument is not that _Marbury_ was controversial at the time, but that Marshall’s reasoning does not necessarily withstand scrutiny and that the result cannot be considered to be wholly apolitical and objective. ---
**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, 8:36pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/156 "2005-11-02T20:36:07Z")
> [@Gadarene](#): > > **SuaSponte:** > > So – and this is crucial – judges could reach opposite results on the same question and both still be “properly” applying law and precedent, right? I forgot that you went to Georgetown Law, where you get a “B” just for registering for a class. No, I meant a passing grade at a real law school. 😉 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, 8:38pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/157 "2005-11-02T20:38:09Z")
Very, very cute, and totally doesn’t answer the question. 😉 ---
**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, 8:39pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/158 "2005-11-02T20:39:49Z")
> [@DSYoungEsq](#): > > “Judicial activism” is not a matter of being “unreasonable.” It is a matter of underlying assumptions to decision making. The “judicial activist” sees him/herself in the role of arbiter of competing viewpoints, wherein that role allows his/her own viewpoint a say in the result. He/she doesn’t limit a decision to looking at the text of the Constitution, the laws of Congress, the laws of the states, the regulations promulgated by administrations, the prior decisions of relevant courts, and applying this compilation of text to the facts of the case before him/her. Instead, he/she looks behind the text to the ideas it tries to express. He/she looks at society to see if old ways of thinking need to be modified to address new issues. in short, he/she engages in a subjective application of what he/she finds important principles to be, rooted in the law, but not derived directly from the text of same. 😕 I think that is exactly my definition of a “judicial activist”. Your definition is more detailed than mine, I concede, but it’s the same. > [@](#): > > A judicial activist issues _Brown v. Board of Education_. A judicial activist also issues _Lochner v. New York_. Both decisions were “reasonable” as long as you accept the underlying assumption of what review standards and methods will be used. I’m not sure I agree as to _Brown_. I’d have to go back and review to be sure, but at least arguably it was _Plessy_ that was the activist decision, and _Brown_ was a corrective decision. Sua ---
**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, 8:40pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/159 "2005-11-02T20:40:06Z")
> [@DSYoungEsq](#): > > As I posted above, Professor Tribe notes that the Framers didn’t bother because they took it for granted. Shrug. As I already said, tell it to **Bricker**. > [@](#): > > I’ve provided evidence, support from noted authors, and you’ve provided your own opinion. Which is worth nothing. I’ve noted that it is not in any way in the Constitution. That is _fact_, your childish invective notwithstanding. > [@](#): > > The issue is what remedy for **abuse of power.** That too is in the eye of the beholder. You have not distinguished between abuse and use of power in the example you’re flogging, except to imply that if “The Great DSYoungEsq” disagrees with it, it’s therefore abuse. Even granting that a particular use of power constitutes abuse, the remedies for it are in the ol’ usually-reliable checks and balances system. The one that you disparage. That’s how it works, old bean, that’s how it works. That’s the only way it can work, the only way anybody’s seriously proposed to make it work. So what \*do \* you offer instead of the checks and balances system against this hypothetical abuse of power? You’ve proposed nothing whatsoever, you’ve only indulged a desire for schoolyard neenerneenering. > [@](#): > > Oh, and you might try actually using reason, instead of pseudo-witty commentary. It gets you ever so much further. Consider the source. 🙂 I already \*told \* you, when come back, bring argument. Now go do it. ---
**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, 8:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/160 "2005-11-02T20:41:00Z")
> [@SuaSponte](#): > > Basically the same answer as to **Gadarene**. If you read an opinion and think, “wait a minute, that argument doesn’t flow from the precedent they are supposedly relying upon,” you have yourself an activist decision. This is not a very rigorous standard. I think it is an extremely worthwhile exercise to consider _formally_ how a judge’s voluminous published opinions on presumably many different topics can map to either “results oriented” or “not results oriented”. Even if we cannot specify this function, we should be able to say something about its properties, characteristics, or perhaps its limiting cases. If we really can’t say anything about it, then for all intents and purposes, it doesn’t exist. [Previous page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=7) [Next page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=9)