# 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:** 8\ **Page:** 3
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 12, 2012, 10:40am UTC](https://boards.straightdope.com/t/judicial-activism/617808/41 "2012-04-12T10:40:56Z")
IOW, Judicial Activism is whenever a court rules in a way social conservatives don’t like, no more no less. There has yet to be an argument raised with any more substance than that under even the most casual scrutiny. Note too the loud lack of screaming from them about the \*Heller \*or _Citizens United_ rulings, both of which involved the Supreme Court literally inventing rights, for instance. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 12, 2012, 11:36am UTC](https://boards.straightdope.com/t/judicial-activism/617808/42 "2012-04-12T11:36:13Z")
> [@ElvisL1ves](#): > > IOW, Judicial Activism is whenever a court rules in a way social conservatives don’t like, no more no less. There has yet to be an argument raised with any more substance than that under even the most casual scrutiny. Note too the loud lack of screaming from them about the \*Heller \*or _Citizens United_ rulings, both of which involved the Supreme Court literally inventing rights, for instance. No, dammit! The term has a _legitimate meaning_, one contradistinguished from _judicial self-restraint_, which has been _ **hijacked** _ by demaggic social conservatives. Put as simply as possible, it involves the court substituting its own solution to a problem in place of one proposed or5 proposable by the legislature _when it is not incumbent on it to do so._. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 12, 2012, 11:47am UTC](https://boards.straightdope.com/t/judicial-activism/617808/43 "2012-04-12T11:47:41Z")
That’s right, **Elvis**. MA situation is pretty simple. We have the constitution, which clearly admits it. We have the laws, which admit it. And we have the common law definition of marriage, which doesn’t. What’s got to go here? Pick one. A) The constitution doesn’t mean what it says B) The common law definition of marriage doesn’t mean what it says Because something has got to give. I guess if we were being nitpicky, we could decide to throw out SCOTUS decisions recognizing marriage as a fundamental civil right, and that it gains its meaning necessarily in being able to marry the person of one’s choosing, then it’s simple. Common law definitions are actually stronger than statute and stronger than constitutional protections, including the power of the state itself, and stronger than the courts at all levels. Which would be a victory for… whom, exactly? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 12, 2012, 12:53pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/44 "2012-04-12T12:53:11Z")
> [@Fotheringay-Phipps](#): > > [President Obama](http://www.usatoday.com/news/washington/story/2012-04-02/obama-health-care-activism/53955636/1) > > 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. No, sorry, not seeing it. Sounds like another argument that “it’s not judicial activism when my side does it.” ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 14, 2012, 1:26am UTC](https://boards.straightdope.com/t/judicial-activism/617808/45 "2012-04-14T01:26:45Z")
> [@Polycarp](#): > > No, dammit! The term has a _legitimate meaning_, one contradistinguished from _judicial self-restraint_, which has been _ **hijacked** _ by demaggic social conservatives. Put as simply as possible, it involves the court substituting its own solution to a problem in place of one proposed or5 proposable by the legislature _when it is not incumbent on it to do so._. And if the only people who user the term that way are the people arguing that the other way is wrong, then that means the definition has changed. The hijacking is complete. ---
**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 14, 2012, 3:51am UTC](https://boards.straightdope.com/t/judicial-activism/617808/46 "2012-04-14T03:51:18Z")
> [@David42](#): > > Further, the U.S. Supreme Court has said many many times under rational basis review that an infringement of a right (and the court just assumes this is a right) need not have a perfect reason, it only needs to be rational, even if mistaken. The State of Massachusetts advanced three reasons for denying gay marriage: ‘1) providing a “favorable setting for procreation”;  2) ensuring the optimal setting for child rearing, which the department defines as “a two-parent family with one parent of each sex”;  and 3) preserving scarce State and private financial resources.’ Your post switches between commentary and quotations willy-nilly, so I suppose this might be from the opinion… but assuming it’s your commentary, rational basis analysis is irrelevant. SCOTUS applied something other than rational basis in its last two sexual orientation opinions and logic tells us that same-sex marriage deserves at least intermediate scrutiny. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 14, 2012, 4:53am UTC](https://boards.straightdope.com/t/judicial-activism/617808/47 "2012-04-14T04:53:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Your post switches between commentary and quotations willy-nilly, so I suppose this might be from the opinion… but assuming it’s your commentary, rational basis analysis is irrelevant. SCOTUS applied something other than rational basis in its last two sexual orientation opinions and logic tells us that same-sex marriage deserves at least intermediate scrutiny. Over and above which, what SCOTUS has to say about ‘rational basis’ in applying the equal protection clause of the Fourteenth Amendment is very much irrelevant to the highest state court applying the provisions of the state constitution, which does include protection against discrimination on the basis of sex/gender and/or sexual orientation. ---
**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 14, 2012, 4:47pm UTC](https://boards.straightdope.com/t/judicial-activism/617808/48 "2012-04-14T16:47:15Z")
That too, though state courts are naturally free to apply whatever standards of review they deem appropriate in construing their domestic constitutions. If the Mass court purported to be applying rational basis then SCOTUS’ take would be relevant. Was it? [Previous page](https://boards.straightdope.com/t/judicial-activism/617808.md?page=2)