# Judicial Activism **URL:** \ **Category:** Great Debates\ **Created:** [April 4, 2012, 1:51pm UTC](https://boards.straightdope.com/t/judicial-activism/617808 "2012-04-04T13:51:38Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 4, 2012, 1:51pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/1 "2012-04-04T13:51:38Z")
[President Obama](http://www.usatoday.com/news/washington/story/2012-04-02/obama-health-care-activism/53955636/1) > [@](#): > > “And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.” ISTM that there’s a fundamental difference between 2 types of “judicial activism”, and it’s a mistake to lump them together. One type is where the courts deal with longstanding laws and practices. Nothing is fundamentally changed other than evolving attitudes about morality and ethics. For example, if the courts decide that defendants have a right to have their rights read to them. Millions of arrests have been made for hundreds of years without anyone dreaming that there was a fundamental right to have rights read, and there’s nothing inherently new about arrests nowadays, and the only thing that changed is that the courts decided that this hitherto nonexistent right should exist. The second type is where the situation is fundamentally different. Either because it’s a new real life situation that has never been dealt with before, or because the other branches of government have gone in directions that have never been gone before. In this case, the only element of activism is that the court is overturning a government law. ISTM that Obama is conflating two types of “judicial activism”, and that the conservative commentators who object to judicial activism object to the first type, and are not in principle opposed to the general principle of courts overturning laws. The objection is to creating new laws and rights by simply redefining the constitution, as opposed to actually passing them by legislative votes. But no one has ever objected to striking down laws that themselves push the envelope or cross the line on constitutional issues. On a similar note, I’ve seen studies - possibly posted to this MB - which purport to show that conservative judges are as “activist” or more so that liberal ones. And these studies have been invariably based simply on looking at whether the judges ruled to uphold a law or to strike it down. These studies are similarly flawed. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [April 4, 2012, 2:06pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/2 "2012-04-04T14:06:38Z")
So when SCOTUS determined that the Second Amendment was a personal right, which no court had done for hundreds of years, that was in fact judicial activism? What about _Citizen’s United_, which also reversed rather extensive previous rulings? Also it seems rather clear that in the case Obama is speaking of the longstanding legal view (from _Wickard_ if not earlier) was of an expansive Congressional power to regulate commerce, including non-activity. So I’m not sure how overturning the law and reversing that long-standing precedent could be seen as conservative jurisprudence. Even more so on the Medicare expansion part of the case (which would significantly alter the status quo re: federal and state interaction). In the end, as with so much of politics, it’s activism if it’s a decision I don’t like and wise Constitutional reasoning when it’s one I do. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 4, 2012, 2:12pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/3 "2012-04-04T14:12:29Z")
> [@Jas09](#): > > Also it seems rather clear that in the case Obama is speaking of the longstanding legal view (from _Wickard_ if not earlier) was of an expansive Congressional power to regulate commerce, including non-activity. Can you quote the part where it says that non-activity can be regulated? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 4, 2012, 2:23pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/4 "2012-04-04T14:23:47Z")
> [@Jas09](#): > > So when SCOTUS determined that the Second Amendment was a personal right, which no court had done for hundreds of years, that was in fact judicial activism? > > What about _Citizen’s United_, which also reversed rather extensive previous rulings? I’m not up on the nuances of those cases at this time, but if they are as you say, then they are judicial activism of the type that conservative commentors decry. My impression was that the SA gun issue had never been extensively tested, and the notion that it was a personal right had been around for quite some time in legal circles. Also that in the CU case, the law that was overturned was itself an expansion of the government’s involvement in the campaign process. It’s not like the law itself was non-groundbreaking but that the court decided that the constition’s meaning had changed. But you could be right. I wouldn’t say that there is no conservative judicial activism at all. Only that it seems to be a lot less that the liberal judicial activism, and - more importantly - that you can’t show otherwise via a definition of judicial activism as “struck down the law”. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [April 4, 2012, 2:24pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/5 "2012-04-04T14:24:59Z")
> [@John\_Mace](#): > > Can you quote the part where it says that non-activity can be regulated? I mis-spoke. I meant non-economic activity. That is, activity that was not intended to be commerce (i.e. growing wheat, or pot, for personal use). I never really did buy the distinction between regulating something that is not commerce but has an impact on commerce and regulating something that is not activity but has an impact on commerce. But Y(and SCOTUS’s)MMV. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [April 4, 2012, 2:27pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/6 "2012-04-04T14:27:35Z")
> [@Fotheringay-Phipps](#): > > But you could be right. I wouldn’t say that there is no conservative judicial activism at all. Only that it seems to be a lot less that the liberal judicial activism, and - more importantly - that you can’t show otherwise via a definition of judicial activism as “struck down the law”. I would agree, but mainly because I think that “judicial activism” typically just means “a decision I disagree with that strikes down a law”. ---
**Author:** ![tullsterx](https://avatars.discourse-cdn.com/v4/letter/t/e9bcb4/32.png) [@tullsterx](https://boards.straightdope.com/u/tullsterx)\ **Post date:** [April 4, 2012, 3:44pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/7 "2012-04-04T15:44:41Z")
> [@Jas09](#): > > I would agree, but mainly because I think that “judicial activism” typically just means “a decision I disagree with that strikes down a law”. I agree with this. I don’t think President Obama’s comments have anything to do with how you define “judicial activism”. His comments are all about establishing a political position counter to the possibility of the “Obamacare” being ruled unconstitutional. And I think that’s true all-around. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 4, 2012, 4:09pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/8 "2012-04-04T16:09:11Z")
And in point of fact you would all be wrong – in te _legal_, not the _popular_ meaning of “judicial activism.” ( **Jas09** gave what was at once the perfect definition of the popular usage and the reason why it cannot mean anything legally.) “Judicial self-restraint” is a judge or judges doing the minimum possible to accomplish a just and constitutionally valid response to the question(s) before the court; “judicial activism” is going beyond that minimum. While such decisions should take _stare decisis_ and the presumption of constitutionality into account, they should not be trammelled by them. For example, a law should not be declared unconstitutional if there is a way to narrowly show that its application to the particular case is what violates the constitution, thereby setting a standard for its constitutional use and unconstitutional abuse (the latter of course to be avoided). If action tio correct a constitutional error can be taken by an elected official, the court should give deference to providing an opportunity for that officil to do so. A very good example of the extreme to which judicial self-restraint can go in correcting error is the Massachusetts high court’s decision in the SSM case. Faced with a challenge to the state statute delimiting marriage to one man and one woman, the court examined the state bill of rights, and found that, indeed, as argued by plaintiffs it did forbid discrimination on the grounds of sexual orientation. Therefore the law, which manifestly limited marriage to heterosexual couples (or couples faking heterosexuality, I presume), flew in the face of the constitution. But instead of striking down the statute then and there, they: (a) annpunced their decision that the statute contravened the constitution;but (b) stayed their ruling for six months, to give the legislature opportunity to either bring the statute into line with the constitution, or take the initial steps toward amending the constitution to regularize the statute. They deferred to the legislature. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [April 4, 2012, 4:40pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/9 "2012-04-04T16:40:21Z")
> [@Polycarp](#): > > And in point of fact you would all be wrong – in te _legal_, not the _popular_ meaning of “judicial activism.” ( **Jas09** gave what was at once the perfect definition of the popular usage and the reason why it cannot mean anything legally.) > > “Judicial self-restraint” is a judge or judges doing the minimum possible to accomplish a just and constitutionally valid response to the question(s) before the court; “judicial activism” is going beyond that minimum. While such decisions should take _stare decisis_ and the presumption of constitutionality into account, they should not be trammelled by them. > > For example, a law should not be declared unconstitutional if there is a way to narrowly show that its application to the particular case is what violates the constitution, thereby setting a standard for its constitutional use and unconstitutional abuse (the latter of course to be avoided). If action tio correct a constitutional error can be taken by an elected official, the court should give deference to providing an opportunity for that officil to do so. > > A very good example of the extreme to which judicial self-restraint can go in correcting error is the Massachusetts high court’s decision in the SSM case. Faced with a challenge to the state statute delimiting marriage to one man and one woman, the court examined the state bill of rights, and found that, indeed, as argued by plaintiffs it did forbid discrimination on the grounds of sexual orientation. Therefore the law, which manifestly limited marriage to heterosexual couples (or couples faking heterosexuality, I presume), flew in the face of the constitution. But instead of striking down the statute then and there, they: (a) annpunced their decision that the statute contravened the constitution;but (b) stayed their ruling for six months, to give the legislature opportunity to either bring the statute into line with the constitution, or take the initial steps toward amending the constitution to regularize the statute. They deferred to the legislature. Assuming they do, in fact defer to the legislature, do they get a revised bill passed again? I think not. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 4, 2012, 4:48pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/10 "2012-04-04T16:48:42Z")
Well, SCOTUS can’t do that; a declaration that a law is unconstitutional, without a remedy, would be an advisory opinion, which SCOTUS has no jurisdiction to issue according to its own interpretation of the Constitution. State high courts can, though. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [April 4, 2012, 5:04pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/11 "2012-04-04T17:04:14Z")
10-4 Thanks ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 4, 2012, 5:31pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/12 "2012-04-04T17:31:45Z")
> [@Jas09](#): > > In the end, as with so much of politics, it’s activism if it’s a decision I don’t like and wise Constitutional reasoning when it’s one I do. Jon Stewart illustrates this very well and, as usual, points out the hypocrisy: [Comedy Central The Daily Show Fan Page](http://www.thedailyshow.com/watch/tue-april-3-2012/courtcenter) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 4, 2012, 10:30pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/13 "2012-04-04T22:30:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, SCOTUS can’t do that; a declaration that a law is unconstitutional, without a remedy, would be an advisory opinion, which SCOTUS has no jurisdiction to issue according to its own interpretation of the Constitution. State high courts can, though. SCOTUS can do and has done what I described – note that in the SSM example (and I should have stated it in the description prior to that), the court stated a proposed remedy, then stayed it to allow the legislature to act. You are of course correct that the court cannot render a decision without a remedy (or rather that it is the single most firm of their precedential standards; the ‘case _or controversu_’ clause does allow a bit of wiggle room that the Jay Court declined to occupy, and no one since has). ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 4, 2012, 10:35pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/14 "2012-04-04T22:35:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, SCOTUS can’t do that; a declaration that a law is unconstitutional, without a remedy, would be an advisory opinion, which SCOTUS has no jurisdiction to issue according to its own interpretation of the Constitution. State high courts can, though. There is nothing in the Constitution about the SC holding criminal trial themselves, but they did once. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 4, 2012, 10:42pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/15 "2012-04-04T22:42:03Z")
> [@Jas09](#): > > So when SCOTUS determined that the Second Amendment was a personal right, which no court had done for hundreds of years, that was in fact judicial activism? The term, as someone stated above, is meant to mean one’s opinion was not agreed to. There is also nothing in the text of the 4th AM concerning arrest warrants, just search warrants. Would we want the police coming into our home absent exigent/emergency circumstances, to arrest us without a warrant? Before 1979, the federal constitution permitted it though. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 4, 2012, 10:45pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/16 "2012-04-04T22:45:34Z")
It says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Can’t go seizing people or effects. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 4, 2012, 10:52pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/17 "2012-04-04T22:52:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Can’t go seizing people or effects. Still, at one time, under the 4th, it was pemissable to arrest inside a home wothout a warrant. I would call that UNreasonble? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 4, 2012, 11:03pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/18 "2012-04-04T23:03:24Z")
Well, not necessarily. “Reasonable” is a pretty vague term and does not necessarily imply the requirement for a warrant. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 4, 2012, 11:08pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/19 "2012-04-04T23:08:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, not necessarily. “Reasonable” is a pretty vague term and does not necessarily imply the requirement for a warrant. Could be, but the SC finally decided it was necesary as to not violate the 4th. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 4, 2012, 11:11pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/20 "2012-04-04T23:11:11Z")
Well, yes. I agree with your general point that it is so because SCOTUS wills it, and judicial activism is just people being pissy about it. [Next page](https://boards.straightdope.com/t/judicial-activism/617808.md?page=2)