Why wouldn’t *Plessy *be viewed as judicial activism and Brown be viewed a remedy to that that ruling?
Anyway, registering for a class only got you a B-.
Ooh, this is fun: I’d love to hear this argument.
Can’t resist the cheap shot. 
Seriously, certainly “non-activist” judges can disagree. I don’t believe, and I doubt you do either, that in every, or even most, cases either the majority or the dissent must be expounding an activist theory. Reasonable judges can disagree about the proper application of law and precedent to a particular set of facts without one of them going off the deep end.
Sua
You’re not going to hear it today. I’m not going to jump into that snakepit without doing some serious reading of both decisions and their antecedants.
Sua
Could it not be that both Plessy and Brown were political decisions by the Court acting in its capacity as one of the 3 political branches of government, each case reflecting the broad public opinion of its time as well as legal analysis? Why the common pretense that the Court lives inside a glass case, insulated from and uninvolved with the broader world? It isn’t and it can’t be.
I’m right there with you. I think that almost all disagreements between judges are so-called ‘principled disagreements’ – sincere differences of interpretation derived through good faith efforts to strictly apply the existing caselaw (and whatever other legal tools the judge deems relevant and useful). But this takes us right back where we started. If it’s not judicial activism if a judge is ‘properly’ applying the law and precedent, and if proper application of the law and precedent can result in multiple valid outcomes often spanning the range of potentialities (affirm, reverse, refuse to hear on jurisdictional grounds, etc.), how are we to know when a judge is being activist? Is it just that an activist judge’s reasoning will be so beyond the pale that no reasonable person can see it as naturally flowing from existing legal principles? How often does that really happen?
On your argument alone, I think you would have a problem - I doubt a majority in this country wanted desegregated schools in the 1950s.
And, of course, a “political” branch of government is one that is elected.
Good God, who said it wasn’t? The whole thing was a delicious political scandal that ranks right up there with the 2000 election. Marshall got to kick the Federalists, kick the Anti-Federalists, avoid a confrontation with Jefferson and the Congress, and have a term for 1804, all while managing to stay in office. Quite a coup. 
Very rarely, and much less often since Brennan left the bench. In a lot of ways, the fight over “judicial activism” is just another example of the right and the left re-fighting the 1960s.
But it does happen, and I think it is most obvious when a judge issues an opinion that is contrary to their judicial philosophy, like Scalia’s concurrence in Gonzales. Results-oriented, not principled.
Sua
Maybe not a majority yet, certainly a great deal of regional variation, but it was part of the large and growing wave of civil rights that were occurring then. If Brown was a little ahead of the times, it wasn’t by much, and clearly the times were going to catch up with it soon, and largely as a result of its existence and the Court’s imprimatur. To suggest that the decisions to accept the case at all, and to rule upon it as the Court did, were made in isolation from the political world and purely on legal merit would be nonsensical.
The “of course” definition of a political branch would be one that acts in a political way - one that has an effect on the way we interact with each other collectively, that is, one that adds definition to and/or executes the law. That’s all 3 of 'em.
What was all that crap you were shoveling me about it being generally accepted at the time, obvious, etc.? Gawdamighty, man, do you even read your *own * posts?
If a state infringes on an unenumerated right, where is the remedy? We accept judicial review in interpreting the definition and extent of Constitutional rights, unless their unenumerated? What is the basis for that rationale, for that limitation on an already acknowledged judicial power?
Um, Elvis, DSYoung was referring to the facts of Marbury itself. It was juicy; chock full of political intrigue and underhandedness.
Sua
Which itself was a mop-up campaign of the Civil War, against segments of society that hadn’t yet accepted it. It’s still going on, too - we see even a few Dopers fiercely waving the old States’ Rights banner, even today.
So he was. Never mind.
Good post, Shodan. I’ve got disagreements with it, but they’re not substantial enough (at least as presently constituted) as to require further response on your part.
Hardly. Remember the context.
In Plessy, Louisiana required by statute that all railways provide “equal but separate accomodations.” There were penalties for failure to so do, applied against railway officials, and penalties for citizens who travelled in the “wrong” cars. Plessy was a partly negro person who attempted to travel in a “white” car, was asked to go to the “black” car, refused, and was ejected from the train, arrested, and jailed. He attempted to obtain a writ of prohibition from the Louisiana Supreme Court, which request was denied, and the issue taken up to the Supreme Court of the United States.
The Supreme Court upheld the Louisiana court. In so doing, it:
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Refused to find that the Thirteenth Amendment did more than abolish servitude,
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Determined that the exercise of police power by Louisiana in classifying people on the basis of race was a reasonable exercise of same, with considerable deference given to the legislature in having made that determination.
Now, this is hardly “judicial activism.” Firstly, from the standpoint of construction of meaning, the Court was being quite conservative in its application of the Fourteenth Amendment when deciding the extent of the prohibitions on legislative powers contained therein. It did not create some novel reading of the amendment to accomplish this. Rather, it refused to utilize some sort of expansionistic reading of the Amendment to attempt social betterment. Secondly, it was not doing something that was out of the norm for society and the country as a whole; indeed, places as diverse as Louisiana and Massachusetts engaged in “separate but equal” legislation. In our position in the year 2005, we can argue that the reasoning is wrong, but we cannot consider it “activism.”
Brown, on the other hand, was clearly activism. The settled law of the land was that “equal but separate” facilities were not a violation of the Fourteenth Amendment. The Court in Brown totally disregarded the approach used by the Court in Plessy. It examined the effect upon education of having separate facilities, determined that the effect could not result in “equal educational opportunities,” and determined that the doctrine of “separate but equal” had no place in the field of education. Discriminating in that fashion denied equal protection of the law to those so segregated.
Where, of course, one must ask, do the words “equal education oportunities” get found in the Fourteenth Amendment? And what happened to the concept of deference to the determination of a legislature? To get where it needed to go, the Court ignored Fourteenth Amendment decisional law, ignored the will of the legislature, and imposed its own value judgments upon the practice in question. A clearer case of “judicial activism” cannot be found easily. And, the interesting thing about it is that it did so quite quietly, but firmly, without dissent among its members.
The remedy is quite substantial. Bricker and Shodan have noted it multiple times: amend the Constitution. That could involve amending the United States Constitution, it could involve amending the state constitution (usually much easier). Convince Congress to legislate in such a way that the state has to stop (e.g.: Civil Rights Act of 1963). We’ve done it as a nation, so it isn’t all that hard to conceive. And it hardly leaves you without remedy.
The activist judge, however, may well be unremediable, in certain situations, which is the point I made previously. Not all such situations, and you will, I hope, note that I am not an advocate of, nor an opponent of “judicial activism.”
Um, I read them. Perhaps you should. 
Ah, I see you apologized, er, that is, asked us to pay you no attention for this post. Fair enough.
I understand the policy concerns about judicial review. What I don’t understand is the basis, in the Constitution, for treating unenumerated rights differently from enumerated ones. I think it’s been pretty well decided that judges have the power (and should have the power) to protect the rights of its citizens by exercising judicial review. I can also understand, if not agree with, the view that in the realm of unenumerated rights, there is a greater potential for “activism” by the judiciary. What I don’t get is the Constitutional basis for treating those rights differently.