Yes, and if they make wildly unpopular rulings, people may be more likely to plan assassinations of Supreme Court Justices.
That’s not correctly counted as a “check” either. The question is what checks the system places on them, not what extra-legal consequences may result.
Well, I suppose you could see it that way.
Are you saying that you consider this a legitimate check on judicial power? And that you support its use?
And suppose the executive branch tried to abide by its duty and enforce the ruling. What actions would you recommend be taken by the states who decline to accept the ruling? Armed resistance? Secession? Standing in the school house dorr?
Regards,
Shodan
Well, I suppose you could see it that way.
Are you saying that you consider this a legitimate check on judicial power? And that you support its use?
And suppose the executive branch tried to abide by its duty and enforce the ruling. What actions would you recommend be taken by the states who decline to accept the ruling? Armed resistance? Secession? Standing in the school house door?
Regards,
Shodan
It is an “open question” only because it was not directly answered. And, as Professor Tribe puts it, it may not be a corallary to the grant of power in the Constitution, but it not an argument against the postulation of that grant of power that it is not a corallary. In my opinion, the alternate assertion, that Congress should be its own check upon constitutionality of its laws, has a much less strong case for it to be made from the inherent conflict that exists when the Court ends up having to rule in a case where a potentially unconstitutional law is presented to it. In general, the best argument to make against the determination made in Marbury is to assert that it isn’t explicitly in the Constitution. But, if we limit ourselves in that fashion, there are any number of difficulties inherent in the document that would force us to approach the idea of amending it with much more liberality. Given how that has played out in a state like California, I suggest we should prefer at least some filling of the unstated intersticies with well-reasoned conclusions drawn from the assumptions which are explicitly laid out in the document.
Amazingly enough, when President Jackson refused to accept the determination of the Supreme Court regarding a National Bank, we didn’t suddenly stop working as a nation and fall into the sea. 
Look if you want to debate then debate my entire post. You asked for what would restrain judicary power and I gave you three checks on the power. Unless you can show that all of the things I cited are impotent then the debate is already over. One restraint on judicial power is all that is necessary to meet the criteria of restrainng judicial power.
Legitimate in what way? Do I think its legitimate to just ignore the Supreme Court when you don’t like what they say, no. Do I think that the Supreme Court lacking power to enforce a ruling is a check on its power then yes. Its a check for gross violations of judicial power but not one suitable for minor violations. The country can survive (and has survived) ignoring the Supreme Court when it makes a ruling that is anathema to a large majority of the population. Obviously if the Court is passing many rulings that are vigorously opposed by the population you either need to change those Court rulings somehow or you will have a revolution on your hands.
Assuming we are talking about a wildly unpopular ruling that the executive is enforcing then you have tyranny on your hands. Let me go ahead and preempt a response, I think armed resistance/secession for gay marriage/slavery/racism wrong on the basis of the reason for the justificaiton of secession. In other words, I support a people revolting against a government that is objectionable to the vast majority of citizens but I do not view Slavery/Gay Marriage/Racism as acceptable reasons to be opposed to a government.
I would disagree for three reasons. First, I deny that stare decisis would have any more difficulty facing an issue of first impression than would textualism. Other common law jurisdictions have to face issues of first impression all the time without the crutch of a written constitution to guide them, and they do fine. A stare decisis driven court would simply apply principles established in other contexts to determine the proper result. In your example, my Court would come to the same conclusion that your Court would - no due process rights for a fetus.
Second, what I have never seen a textualist address - in all fairness, because I’ve never seen them asked - is how they would deal with the practical effect of a textualist judicial culture. A very large chunk of a hundred years of precedent (or more - I believe that at least some decisions from the first supreme court on were not “textualist”) would be at risk. There would be a long period of uncertainty in the law as precedents are overturned. During the process, the validity of laws would be in doubt, contracts would be in question, etc., etc.
Third, the risk is that the uncertainty wouldn’t end there. Textualism is not an exact science. I’ve read enough law review articles in which lawyers and professors with a textualist POV come down on different sides of the issue. Given the inherent disrespect for precedent in textualism, a textualist Supreme Court would be more willing to overturn a precedent set by an earlier textualist Court with which they disagree. More uncertainty in the law, and more attendant problems.
In my mind, stare decisis jurisprudence is “muddling through.” It recognizes that we are not going to get everything right, but rather than bog ourselves down in (usually) partisan and ultimately navel-gazing disputes over what the true and proper result should have been, we just keep moving forward, pausing only to correct those decisions that we as a society come to recognize simply do not work. And we plow forward with the recognition that, at least in the legal world, we can anticipate what the rules are and will be.
Sua
Great…Then you ought to be able to just reel off real life examples from amongst those cases studied by the folks in that op-ed where the activist approach is the one that votes not to overturn the law and the non-activist approach is the one that votes to overturn the law. Because in order to account for the statistics that we see, there are going to have to be oodles of such cases…particularly to make up for the reverse situation that seems to get so much press.
Look, you may have a case here…but you sure as hell are not making it at the moment. The fact is that in the real world as opposed to the SDMB, activist judges are generally considered by those who complain about them to be those who tend to strike down laws passed by legislatures on the basis of some right purportedly found in the Constitution that the conservatives doing the complaining believe is not there. I am sure it would be easy to find oodles of quotes to this effect.
Now, you are trying to claim that, actually, in the world of the Supreme Court, the activist decision is much more often to let the law stand and the non-activist position is to overturn it. That sounds pretty fishy to me…but I am willing to be convinced that it is at least plausible if, say, almost all of the cases involving the overturning of Congressional laws involved fights between Congress and the states. However, you do need to provide some sort of compelling explanation for these statistics and not just some contrived example.
**Bricker **is right that you can’t just look at raw numnbers. But if that’s all you are willing to do, a better case would be made if you looked at how often State Laws were overturned. A non-activist federal judge will be much more deferential to the State Legislatures than to the Federal Congress, since the constutition places more restrictions on the latter than the former. Note that *Roe *falls in that category.
But even that type of analysis would be sloppy. Without looking at a case by case basis, the raw numbers are just that-- raw numbers.
To a large degree, John, I agree with you. The raw numbers are certainly not sufficient. However, they do, in my view, throw the burden of proof onto those who are trying to claim that conservative judges are less activist. I.e., I think they demand that those who claim to be against judicial activism explain the curious fact that the judges that they consider the most activist have voted to overturn Congress least often and those who they consider the least activist have voted to overturn Congress far more often.
Indeed, there may be a great explanation, in which case I would strongly recommend that the person who finds it here submit a counter-op-ed explaining why the criterion used in that op-ed for identifying activism was so poor that it actually has a significant negative correlation to true judicial activism as they see it. That would be most interesting to see and I await it with baited breath!
NO!!!
I’m not claiming that at all. It’s true that I offered one example of this, but that’s not the point of my claim at all.
I’m telling you there is NO CONNECTION between “overturning a law” and “activism.” I think, if you’ll review my prior posts, that I’ve said a couple of dozen times that it all depends on what the rationale of the judicial decision is.
Here:
Congress passes a law making searches of people on federal highways legal with no probable cause. Judges overturn law. NOT ACTIVIST. Law violates the text of the Fourth Amendment.
Congress passes a law authorizing death by flaying for the crime of making terroristic threats. Judge overturns. NOT ACTIVIST. Law violates the text of the Eighth Amendment.
Congress passes a law requiring credit card companies to manage risk by limiting the sub-par to par ratio of account holders they have. Judge overturns it. ACTIVIST. Because judge cites the due processs clause as evidence that credit is a civil right and must be uniformly avaliable to all people.
Are you with me yet? Overturning or upholding a law means nothing with regard to activism. The only criteria is: does the rationale for the decision comport with the text of the law, or is it found in some emanation, penumbra, or other unwritten extension of the law?
WHAT IS THE JUDGE’S DECISION GROUNDED IN? That’s the only question that addresses activism.
Um… no.
If a restraint cannot be used except by total breakdown of the system, then it’s not suitable for this discussion. It’s as though you ask what restraints there are for cheating spouses, and I offered up the possibility of being murdered by an cuckholded spouse. If the remedy is only one of last resort, and its use indicates the destruction of the entire system, then it has failed.
Sure, the country survived such a situation in the early nineteenth century, when it was very diffferent from today. Federal power as a whole was much weaker; the states were more autonomous.
If, today, the Court ruled that the Ten Commandments couldn’t be posted outside federal buildings, and President Bush said, “John Roberts has made his decision, now let us see him enforce it,” we’d be in collapse; a constitutional crisis.
Bricker:
This was Scalia’s argument in favor of legal formalism in one of his earlier essays – he said that the realists fucked everything up by openly admitting that the interpretation of constitutional provisions, statutes, and common law precedent was not merely a matter of mechanistic application. All the good judges, Scalia said, already knew that the law was essentially indeterminate, yet had the intellectual chops to deal with the ambiguous cases in a sophisticated and fluid manner. Shouting about the law’s indeterminacy from the rooftops, as the realists did, would confuse and confound the mediocre judges (for whom the security of law’s predictability would disappear) while emboldening the legislature to be less heedful of constitutional constraints when passing laws (as they would assume that an active and aware judiciary, not naturally inclined to legislative deference would catch their mistakes). It’s a Machiavellian theory; see the Farber and Sherry book for a more detailed treatment.
It is clear that friend Bricker has given the definition of “activist judge” far more attention and complex thought than any of the rest of us have, could, or would. I haven’t, I’m not sure I can, but I"m real sure I don’t want to.
So I propose the following, by acclamation and stark staring deceased is, we declare Bricker Official SDMB Arbiter of “activist judges”: having sole authority over the definition and application of said term in all situations where such a definition might be useful. Should such an occasion arise.
Said designation will be accepted without demur or complaint, and no explanation will be required.
What say ye?
To use your analogy, I also offered up divorce, counseling, seperation and murder as options but you have focused on the last resort of murder. I even disagree with the executive not enforcing the ruling as a breakdown of the system. If I had said the population could rebel and throw the Justices off the court then that would be outside the system. The executive declining to enforce the ruling is a part of the system just as Congress refusing to fund a military adventure is, although I would agree that its an extreme measure. Either way, there are plenty of checks within the system such as the other 3 I mentioned.
I believe you conceded that impeachment is a restraint, that is the only process that could stop Bush tommorow if he decided to go bonkers. Certainly Bush could do a lot more damage in three years than a renegade Supreme Court Justice could in a lifetime. Why is impeachment enough of a safeguard against presidents but not against Justices?
In addition it seems we have dropped amending the constitution from the debate and never addressed that Justices are appointed by an elected official and confirmed by another elected body. I will go ahead and add another on top of those, you need 5 Justices to make a ruling so its not a matter of one renegade Justice its a matter of 5.
I disagree, there is no way that the populace would enraged seriously enough to consider rebelling to enforce the ruling. The country would not divide nor would the constitution be torn up. What would happen is that Bush would be under extreme pressure to enforce the ruling and possibly face impeachment. At worst in 3 years a canidate that is committed to enforcing the ruling would be elected. If the populace didn’t care enough to do any of those three things then they certainly wouldn’t care enough to plunge the country into a constitutionl crisis.
It sounds good…
The problem is, if hemention a certain gay rights ruling, then under the defintion offered, he couldn’t use the term to apply to it, as he has described it here.
There are also other restraints on judicial power. Congress has the ability to alter the size of the courts or restructure them completely, as when Congress created the DC Circuit. Congress can also exercise its exception power.
There is in fact an outstandingly good answer to this, founded in an obnoxious precedent about 170 years old. And I suggest we all sit back and let Liberal give it. Because, he, more than anyone else here, has been directly affected by it.
Okay, let me rephrase what I said: Now, you are trying to claim something that would seem (in light of the conclusions of the study that started this thread) to imply that, actually, in the world of the Supreme Court, the activist decision is more often to let Congress’s law stand and the non-activist position is to overturn it. That is, assuming that you agree that Souter, Stevens, Ginsberg, and Breyer are more activist than Kennedy, Scalia, and Thomas. (This last was an implicit assumption of my statement, so please correct me if I am wrong and you do not believe this.)
I thought you were a textualist. Seems to me the 9th Amendment is pretty clear on its own. Hell, even Madison himself said: "“As a guide in expounding and applying the provisions of the Constitution,the debates and incidental decisions of the Convention can have no authoritative character.” Not only that, you completely misunderstand the quote, putting it forward to support a position it was never meant to support. Madison is saying that there are rights, rights not enshrined in the Bill of Rights, that exist and should be protected.
And this supports your position how? Hell, even one of the scholars, Thomas McAfee, who supports this positivist reading has said: “the [Ninth] Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government.”
Your quote is also worthless because completely ignore the “last clause of the fourth resolution”, to which Madison referred, provided: “[t]he exceptions here or elsewhere in the [C]onstitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the [C]onstitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
Madison clearly was saying the exact opposite of what you purport he was saying. He, and many other founding fathers, never believed that the Constitution listed all the rights that should be protected.
In addition, Madison’s original proposition did not include the final four words of the 9th Amendment “or to the people”. That language was added later, further evidence that the Constitution was never meant to be a limit on the rights of man.
If you’re still not convinced, just look at the comments of other founding fathers. Here’s some quotes:
Theodore Sedgwick, in particular found a list of rights to be unnecessary. After all, there are countless rights -"a man’s right to wear a hat, to go to bed when he wants, to ride a horse in the afternoon. If you’re going to guarantee one of these, why not all of them?
James Wilson: “It is the glorious destiny of man to be always progressive. . . . Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. . . . In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the cotemporary [sic] degree but will be calculated to produce, in future, a still higher degree of perfection.”
And, my personal favorite, Edmund Pendleton suggested that the ‘danger’ of an enumeration of rights was that ‘in the progress of things, [we may] discover some great and Important [right], which we don’t now think of.’
The Bill of Rights was never intended to be a complete list of the rights of man or of rights that the government cannot infringe. To bind yourself to the proposition that, unless a right is specifically enumerated in the constitution, it does not enjoy Constitutional protection ignores not just justice, but the understanding of many who wrote, debated, and ratified the Constitution. And quoting Madison for a proposition he never advocated is, at best, troubling.
No, it’s not. It’s a Constitution, not a law. It’s a document that describes broad principles, great ideas, and a form of government, not a statute. It is important to remember that Constitutional interpretation and statutory interpretation are not synonomous. It was the intent of the constitutional convention to draft a constitution, not a law, that was “flexible enough to address the evolving needs of the country rather than being limited to the historical particularities of the late Eighteenth Century. It was couched in vague, and somewhat ambiguous language, to allow for its growth and evolution over time. It was the skeleton that experience would cloth.”
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?
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. But it is not the end of the discussion. The founding fathers understood that, and created safeguards to protect the minority. One of those is the judicial protection of the rights of citizens.
That’s the best you got, “Nuh, uh!” Killer argument there.