Judicial Activism

Great Debates
21

Are you serious? Judicial “self-restraint” is overturning 2,000 years of law? What, pray tell, is judicial activism?

I agree with the OP, the first kind of judicial activism we all agree with: A judge is presented with a novel situation and tries to apply existing law and make it fit; possibly creating new common law on the way in the absence of legislative input.

The second is exactly what the MA Supreme Court did: It took a well established principle, decided that it didn’t like it, and changed the law.

22

What are these “2,000 years of law”? Marriage, as presently constituted, bears no resemblance to the institution of marriage 200 years ago, much less 2,000. Pretty much the only similarity is that is generally involves a man and a woman.

23

Your last paragraph better describes your post than it does the Mass. decision.

Try this: Confronted to a challenge to a law’s constitutionality, the courts must first determine whether the law does indeed conform to the relevant constitution(s) or not.

In the event they decide it does not, what divides self-restraint from activism is what they then do about it. An activist judge or court substitutes his own solution for the legislature’s; a self-restrained one sets a default remedy in case of legislative inaction, then stays it sua sponte for a set time to allow the legislature to act.

The latter is what the Massachusetts court did. The fact you do not like the results they arrived at, or the choice the legislature made, or the degree to which it changed an institution, is irrelevant – what matters on this question is who made the actual change – the elected legislature/executive or the judiciary.

24

So instead of saying from the bench that the law was unconstitutional and changing it themselves, it ordered the legislature to do it within 6 months. I don’t see the functional difference.

I don’t want to hijack the thread, but I believe that the very definition of judicial activism complained about by conservatives is the case like this one: One where there is established law, the legislature has spoken, and the court takes another direction.

25

The functional difference is that the legislature, unlike the court, could institute the process of amending the state constitution to bring it into accord with the established statute law you feel to be more important than human civil righjts.

26

Well, that’s the debate, isn’t it? The people who accuse the Massachusetts court of judicial activism argue that there wasn’t any right to gay marriage in the Massachusetts Constitution until the Mass. Supreme Court said there was; but that they just made that up because they thought that gay marriage was a good thing, and if the Constitution had given that right, how come nobody had noticed that for the past 225 years…that you know, that we haven’t found any letter by John Adams saying, “And now that I have written this Constitution for the Commonwealth, gays can get married!” or something like that.

I’m not saying that the people who argue that are right, just that that’s what they’re arguing. (I’m not saying they’re totally wrong, either, because I think values have changed in the past 225 years, and we tend to see more things as fundamentally human rights now that people did back then).

27

Absolutely wrong. They *withheld *enforcement of the state’s equal protection and due process rights to *allow *the legislature to act. They did *not *order it to do anything, they lack the power, and the legislature in fact did not act in the end.

Absolutely wrong again. The Constitutional right to equal protection was established, the legislature had said nothing either way although the state had a long-standing practice of denying Constitutional protections, and the court ruled that the Constitution does apply.

Where do you get this crap?

28

That’s my position. Values have “changed” in the past 225 years. I think that nobody would argue that John Adams or the authors of the 14th amendment believed that their writings were for the purpose of allowing gay marriage.

So, now we have come to the realization that maybe we were wrong for restricting marriage to opposite sex couples only for all of these years. So how do we change that? Do we do it the right way and have our elected representatives change the law, or do we have a group of judges create a fiction that it was always that way under the constitution? The second option is the very definition of the bad kind of judicial activism talked about in the OP.

I’m not saying that judicial activism can’t achieve subjective good results sometimes. Brown v. Board of Education was a perfect example. I’m saying that in the abstract judicial activism is bad because there is little recourse that can be had against a judicial decision other than amending the constitution. And even THAT hasn’t worked in California because more liberal judges are striking that down.

29

The response to that, of course, is that values have changed, society has changed, and our understanding of the text has changed, and that too rigid adherence to what the writers of the Constitution understood by what they wrote leads to inflexibility and to a Constitution that doesn’t serve the people. The text says what the text says, and we should be free to interpret it based on how we see it and we understand it.

For instance, the US Constitution bans “cruel and unusual” punishments. Now, when the Constitution was written, and indeed after, branding and mutilation (cutting off of noses and ears) were common punishments in the US. Now, of course, they are not. We have become a more civilized people and no longer practice such barbarous punishments. Are we obligated, though, should the sentence somehow to be issued by a judge, to carry it out, because the writers of the Constitution did not consider such punishment cruel and unusual? Are we obligated to amend the constitution to specifically state that branding is cruel and unusual?

30

Then there is nothing firm in the Constitution to rely on. If we don’t give the words solid meaning from an objective basis, when they were written, then we can read in or out pretty much anything we want.

This is a perfect example of how changed values should work. No state allows for mutilation as punishment for a crime exactly because of these evolving social mores. Society reflects that in passing new laws for new situations. If, say, Alabama wanted to bring back branding as a punishment, I’m sure we would have no trouble getting 2/3rds of each House of Congress and 3/4ths of the states to go along with an amendment.

What is a bad example is when judges simply claim that society has changed. Gay marriage is a perfect example. Sure, society is more accepting now than in years past, but the very fact that over 30 states have enacted laws or constitutional amendments banning it, and have enacted them very recently, is evidence that such a sea change has NOT happened regarding this issue. It is still a very contentious one and for a judge to take it into his hands and simply claim that opinion has changed takes these matters outside of the democratic process with no actual text to back up that assertion.

If society has truly changed so much regarding gay marriage, you would see state legislatures recognizing it and Congress repealing DOMA. It’s STARTING to happen, but we aren’t there yet. A handful of judges shouldn’t simply decree otherwise.

31

I disagree. If we read the words plainly, then gay marriage not specifically ruled against would be allowed. To suggest otherwise is to in fact use judges as social barometers: “Surely since no one accepted gay marriage, this text cannot be read as supporting it.” It’s fairly straightforward to read it that way, and can only be seen the other way if we start trying to measure the way the social wind blows.

32

A. Congratulations on getting the facts right, acknowledged or not.

B. You would help yourself a great deal by showing how *Goodridge *differed from Brown to the extent you describe - one was bad and one was good, you say, but why?

C. You would help yourself a great deal more by acknowledging that wrongs very often, even usually, are not righted by legislative action, in fact often the legislators will defer to the backlashers more than the pro-justice advocates.

D. And finally, you would help yourself even more than that to recognize that those diffculties are why we put rights in the Constitution rather than simple statutes, and make a body (theoretically) not subject to popular whim responsible for defending them.

Fair enough?

33

Brown was good in the sense that with 55 years of hindsight, we see that it helped move America away from segregation and into an integrated society. The decision itself was poor, but it achieved great results. Perhaps in 55 years, we can look back and see that Goodridge achieved great results. Time will tell. The problem I have is that when the Court takes that much power, they could just as easily rule on a case with disastrous results, and there is very little that can be done to overturn those decisions.

Absolutely. But we don’t know if it really is a “wrong” until we have some debate and consensus among the people that we elect to decide what is right and wrong.

Yes, we have many such rights that aren’t subject to popular whim. Unfortunately, the right to same sex marriage, by any rational understanding of the history and text of the Constitution, is not one of those rights. It is a new idea that is gaining traction. As such, you can’t look to a document that hasn’t provided for this right. You need to get our elected representatives to make these changes to reflect the changes in society.

34

Or perhaps we could dispense with the weaseling and consider the question now. You’re already of the opinion that it was a bad case, even though you’ve been badly misinformed (and why?) about the facts of it. Why do you think so? :dubious:

Or perhaps we could dispense with the weaseling there, too, and get back to your previous arguments about what society thinks is right and wrong, not what Congress or the state legislature thinks. Who represents and is responsible to whom, in your philosophy? :dubious:

Or try this: Would school integration and voting rights for blacks have been guaranteed by Congress without Brown? It had been almost a century already, as you may know.

Ahem. As has already been pointed out, the right(s) in question are to equal protection of the laws and to due process of law. You certainly *will *find those in the US Constitution, and similarly in many/most state ones as well. Does your misunderstanding of that basic point come from the same place as your misunderstanding of the facts of the *Goodridge *decision?

Didn’t you just say it was *their *function “to decide what is right and wrong”? Please explain.

35

Would you have required a constitutional amendment in place of Loving v. Virginia? In 1967, 17 states had anti-miscegenation laws on the books.

36

Goodridge starts off with the basis of it’s reasoning:

“Marriage is a vital social institution.   The exclusive commitment of two individuals to each other nurtures love and mutual support;  it brings stability to our society.”

This definition is inclusive of same sex marriage.

Later the court confesses:

“We are mindful that our decision marks a change in the history of our marriage law.”

They then cited authority for what a marriage is:

"The everyday meaning of “marriage” is “[t]he legal union of a man and woman as husband and wife,” Black’s Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term “marriage” has ever had a different meaning under Massachusetts law.See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage “is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife”). "

We have a situation where the Massachusetts Supreme Court defined marriage as inclusive of same sex, then recognized that that is actually NOT the legal definition, and then changed the legal definition to accord with a pre-conceived outcome. Not good reasoning. it’s a circular argument. “Because marriage includes gays we must change marriage to include gays.”

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.’

Both one and two have a rational connection to marriage. The court, rather than recognizing these reasons, whether perfect or not, then insisted upon criticizing these reasons beyond whether there was a rational connection–INVENTING a rule of law that under rational basis scrutiny a reason for discrimination must be perfect. This is excused by the claim that the Massachusetts Constitution is broader than the federal Constitution without explanation for the reasoning. In other words, they made it up.

The Goodridge opinion is replete with authorities that the state has the right to regulate who can marry–all ignored and never explained why they were able to ignore this.

The only reason is they were politically swayed, did not have lawful precedent for their opinion, and made it up.

Goodridge is horrible. Under this reasoning we are subject to anything.

In my opinion any time a court talks about their “evolving understanding” of the Constitution, they’re about to engage in judicial activism. I say this because the Constitution does not change unless amended. Instead what changes is something in the Judge’s minds. This leaves us at the whims of judicials dictators if all that is necessary for the minds of the judges to evolve.

37

I have serious doubts we are reading the same decision.

What constitution do you understand the Goodridge court to be applying to the law? Why is what SCOTUS siad about ‘rational basis’ not relevant to this decision?

And can you and jtgain see far enough past the blinders of SSM to see why (a) this decision was called for by strict application of the relevant constitutional provision, and (b) the way in which the court applied it was an example of judicial self-restraint, not of activism?

38

I have serious doubts we are reading the same decision.

What constitution do you understand the Goodridge court to be applying to the law? Why is what SCOTUS siad about ‘rational basis’ not relevant to this decision?

And can you and jtgain see far enough past the blinders of SSM to see why (a) this decision was called for by strict application of the relevant constitutional provision, and (b) the way in which the court applied it was an example of judicial self-restraint, not of activism?

39

I, like Polycarp, have the distinct impression you and I are reading different cases.

You spend time covering what the majority said about the definition of marriage has been, and completely ignore their reason for doing so. The court, in the passages you quoted, was rejecting the plaintiff’s argument that, since the statute didn’t specifically deny same sex marriage, then same sex partners were free to get married. The majority rejected that reasoning (which would have required judicial activism) and found that the marriage statutes didn’t allow same sex marriage: “The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry.”

What the court actually did was “… begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution.” They go on to point out that: “For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans” and that “… both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare.”

The Court spoke about what a civil marriage actually is, what function it actually serves, and that the things that make up a marriage and found that none of them are dependent on the gender of the people marrying. As the majority concluded: “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”

I think the concurring summed up the circular logic used to define marriage quite well, when he said: “A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide. This case calls for a higher level of legal analysis.”

40

Sounds good so far.

You left out the three pages or so dedicated to demonstrating that marriage wasn’t just a name on a paper, that it conferred substantial benefits and obligations, and that to therefore deny someone marriage was in violation of Article 1 of the Declaration of Rights. The concurring opinion notes:

Note: “shall not be denied… because of sex [gender]…” Justice Greany then states plainly:

This analysis is straightforward.
If I can marry who I want then I can marry Hillary.
I can’t marry Hillary.
Therefore I can’t marry who I want.

If I were permitted a right regardless of gender, then I could marry Hillary.
I can’t marry Hillary.
Therefore I am denied a right due to gender.

A person is being denied their civil rights because of gender, which is specifically not permitted by law by Article 1.

Addressed.

Oh, and the rational basis thing? Yeah:

There they go again, extending protections under the power not yielded under the US Constitution.

But you were worried about the rational basis applied to the equal protection clause? I see, I see. The argument, which spans far too much to quote, runs thusly: Massachusetts law has gone out of its way to ensure that children are cared for and can be raised by anyone, and in fact “…has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, § 39 (hate crimes); G.L. c. 272, § 98 (public accommodation); G.L. c. 76, § 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited). There is therefore no rational way to suppose that discrimination here could in principle serve the purpose.”

And what argument did the dissent propose? This gem:

Did they forget? "Perez v. Sharp, supra at 717 (“the essence of the right to marry is freedom to join in marriage with the person of one’s choice”). Might as well say: all individuals are free to marry. Whether an individual chooses not to marry because of race or any other reason should be of no concern to the court.

And that would be a load of shit.

Article 1 is plain as day and it takes a disingenuous and Loving-denying individual to suppose otherwise.

That’s right. What’s the MA constitution say? Let me repeat it for you: “All people are born free and equal and have certain natural, essential and unalienable rights… Equality under the law shall not be denied or abridged because of sex…” What a horrible misunderstanding :rolleyes: