Is he right? Or do activist judges need to be gotten rid of?
For once I agree with him.
ducks the parts of the sky that are falling
What say the more conservative side of this board?
As much as I don’t really trust “activist” judges, he is right. The Supreme Court is supposed to be free of political influence (after being appointed), so as to not serve any one official’s or party’s need for political expediency.
As debates on this very board have shown again and again, “judicial activisism” is such a subjective term as to be nearly meaningless. Was the Massachusetts supreme court overstepping their bounds to institute a pro-gay policy? Or were they enforcing the logical (if unforseen) consequences of MA’s state constitution and it’s ERA?
Practically any judicial action could be derided as being activist, from banning the 10 Commandments to placing them in a courtroom.
There are some situations where the law deliberately leaves specifics up to the courts. Anti-discrimination cases in employment, for instance; the legislators knew that they couldn’t possible define every situation, so they allow individual cases to be decided on their own merits, and the law only outlines the broad, general guidelines. Hence, any judge/jury ruling on such a case – no matter how they ruled – might easily be termed “activist.”
Getting back to the OP, the attributed quote is consistent with other things Rehnquist C.J. has written on this topic. For example, in his book Grand Inquests dealing with impeachment, he reviews how the founders looked at the power in the early years after the ratification of the U.S. Constitution.
There were two camps: some took the view that judges should only be impeached and removed for extreme misconduct (i.e. the “high crimes and misdemeanours” idea), but others of a more populist bent (Jefferson among them) argued that the judiciary was simply one more federal office, and when the necessary majorities in Congress agreed that a particular judge should not be in office, Congress could remove him for purely political/policy reasons. (There was some support for this approach in the historical antecedents of the impeachment power in England, where it was used as a way to remove politically unpopular ministers of the Crown, prior to the development of responsible government.)
In his book, Rehnquist C.J. came down firmly on the side of the extreme misconduct group. He argued that the Jeffersonians’ failure to remove Justice Samuel Chase (a Federalist) by the impeachment process helped to cement the principle of judicial independence in U.S. constitutional law.
Rehnquist C.J.'s position is to protect the independence of the judiciary from passing political majorities. After all, if impeachment were commonly used for purely political reasons, he would have been an ideal target during the days the Democrats dominated Congress.
The trouble, of course, is delineating what is “political” and what is not. I don’t understand exactly what Renquist is saying. Is he proposing a change to the current impeachment process, and is the OP agreeing with that? If so, what specific change is being put up for debate? Is Renquist saying that legislators should keep their mouths shut and not criticize SC justices?
I think more fleshing out of the proposition is in order.
I think you’re right, John Mace. Unfortunately, the full text of his annual report doesn’t appear to be on the SCOTUS website yet (grr to him for issuing it to the press on a day when the Court is closed). Perhaps it appears in full text as a link to one of the news stories? I ain’t lookin’ – I’ll just check out the SCOTUS site tomorrow.
That said, it looks like the LA times had to go back to 8 years to find an example of the Hammer threatening to impeach a judge, and even then it wasn’t a specific judge. And Rhenquist specifically endorses the incrementalist approach of the Executive using the “gradual process of changing the federal judiciary through the appointment process,” which is what it appears the Bush administration is content to do.
I’m sure he was taking a swipe at somebody – you don’t spend as much time as a judge as he has without learning a thing or two about careful and precise (if indirect) writing. We’ll have to wait for the full text to analyze what he was getting at.
To answer your questions, if I’m reading him right (and like others, all I have to go on is that story and his past expressions of opinion on related topics), the answers to your questions are No, None, and No.
What he’s saying is leave things the way they are, where judges are able to apply broad constitutional principles to specific cases in the way they understand them to apply, whether their particular political philosophy is strict constructionism (in any of its facets) or broad rights-based “living Constitutionalism.” In short, it’s fine for citizen or legislator X to criticize court decisions with which they disagree, either on a philosophical, Constitutional-interpretation plane or simply because they dislike the specific ruling, but don’t go calling for impeachments of judges whose view of Constitutional law doesn’t suit yours. (And that applies as much to me and rjung vis-à-vis the C.J. and Scalia as it does to DeLay and Dewey vis-à-vis the Ninth Circuit.)
Anybody know of any examples of such threats?
I was just listening to a report on the out-of-state conservative group that is organizing a recall drive against one or more of the judges in the current California SSM tizzy. They do not like at least one judges opinions and so they want him thrown out.
No direct cite, I’ll see if I can find one for you.
Per se, maybe not, as it’s been shown that Congress isn’t willing to impeach for mere “bad judging.” I suspect (I can’t prove) that the Framers intended “good behavior” with reference to Article III judges to mean something more substantive, as a standard of judicial performance, than “we don’t have film of you actually taking a bribe” (which is about the only thing that could get a fed. judge impeached today).
For instance, the NYT ran an article a month or two ago on a Southern District of New York judge who has horrible case disposition times, and has routinely only responded to fully-briefed motions, including those in cases where alleged victims of tortfeasors are seeking urgent relief, after years of pendency, and then only when the parties seek relief from the appeals court.
There’s no allegation this guy is a crook; he’s just a bad, lazy, judge. I don’t know that he’s exemplifying “good behavior,” nor that he should have a six figure job making life altering decisions for the rest of his life, just because he hasn’t been caught in a crime.
Giving people impunity from the consequence of poor job performance hasn’t worked out so well in the divine right of kings realm, nor in the civil service.
As for Rehnquist: part of his rationale in endorsing life tenure may be simple conservatism: maybe it’s broke, but don’t try to fix it.
Maybe, to personalize things, he fears that removing judges for poor performance would logically open the door to removing them for faltering health, and he doesn’t (clearly) want to go.
And maybe he’s just “grown in office” as so many federal judges seem to do. Certainly I’ve run across few federal judges who aren’t fairly impressed and awed with the majesty of, well, themselves. Scalia is a rare example with his digs at the “law professoriat.” The S.C. spends so much time being sucked up to be counsel and academics (and spends their offseason lecturing to rapt audiences of law geeks at swank seminars) that it would not be difficult for them to begin to view themselves (or at least their office) as a breed apart from the ruck of common government employees.
Thanks for the cite, Valgard. As long as it remains a loonie-fringe idea, though, I won’t worry. Much.
Huerta88, Rehnquist is objecting to the idea of impeachments for judicial activism, not “poor performance” - i.e. for political reasons. To another statement of yours, the judiciary is *supposed * to be “a breed apart” from those who must deal with day to day issues affecting their own careers. (Scalia is not impressed with himself, you say?)
While I too believe that by “judicial activism” many people really mean “judges making decisions I don’t agree with”. But for me, I think any judge that doesn’t strictly follow stare decis shouldn’t be on the bench. If there is no applicable precedent, fine. Rule away. But if there is then the courts should be restricted to following it. “Good behavior” doesn’t necessarily mean a life term. If they aren’t doing their duty, the aren’t behaving good. I have no problem with activist judges being impeached. If they want to change policy we are doing them a favor by clearing the way for their run for Congress.
I like Rehnquist’s argument! (This is starting to scare me – first agreeing with Brutus in a Pit thread, now this – have I been infected with a Conservative Virus? :D) His points on judicial independence and how it’s tailored are in line with American constitutional practice as it has evolved – and I stand by them.
One thing, which the speculativists of GD might want to look at, is how often the Chief Justice of the United States (and remember why he holds that title and not “of the Supreme Court”) drafted Justice Breyer to assist in chairing committee work, and how he made a point of mentioning that several times in the report. Might this be a “stalking horse” to place our quiet bachelor moderate Associate Justice in the public eye prior to the nomination of Rehnquist’s replacement? – which might well be Breyer; he’s the man who is (a) acceptable to Bush and (b) least likely to get filibustered.
Breyer’s confirmability might simply hinge on whether he’s a bachelor or a “bachelor”, knowhutahmean?
Well, but judicial activism is poor performance, in many cases, and vice versa. I.e., if (let us imagine) a judge simply makes up a “constitutional right” that has no precedent in statute, common law, or the text or legislative history of the Constitution, that is simultaneously an instance of both intellectually-impoverished, “bad judging” (from the standpoint of a precedent-based legal system), and (if he was rigging the game in order to achieve a desired policy outcome) also an instance of “judicial activism.”
Scalia may be impressed with himself (although he has a sense of humor), but he seems less impressed with the judiciary as a policy-making body or with the echo-chamber of the aforementioned “law professoriat” (the fawning, and usually liberal, academics who treat the pronoucements of the S.C. as words of the Oracle, and to whose influence many conservatives attribute the tendency of judges to move to the left once on the bench).
I am most troubled by Rehnquist’s donning of the gold braid sleeve accoutrements, which he claims is inspired by Gilbert & Sullivan (that raises separate issues), but which is also not completely at odds with his viewing himself as some sort of consecrated sacerdote of Justice.
Now, now. That is, as I said, a political question. The solution to having justices on the Court who rule in ways you wouldn’t like is to take the Senate confirmation process seriously. That’s one of the legs of checks ‘n’ balances. Same for your stare decisis concern, 2sense.
Your position is based on the “nothing to see here, move along” liberal/progressive proposition that “judicial activism” is synomous with “justices on the Court who rule in ways you wouldn’t like.” I.e., critiques of “judicial activism” are merely re-statements of disagreements on fundamental legal principles, and “judicial activism” is merely a smokescreen that conservatives (or liberals) invoke to criticize results, not process.
But I don’t agree with the “judicial activism is just what sore losers cry when the decision on the merits doesn’t go their way.”
By “judicial activism,” I mean judges arriving at desired policy outcomes without serious regard to, or in defiance of, settled procedural and substantive law, stare decisis, principles of standing to sue and ripeness, and other entirely non-political, purely jurisprudential doctrines of our common law constitutional republic. The processes and tools of what I regard as “judicial activism” are content-neutral, at least at one level. Thus, if a judge declares a fundamental constitutional right that (1) does not appear in the constitution; (2) has never been recognized in the case-law; and (3) wasn’t discussed or apparently contemplated by the framers of the relevant section of the Constitution, that is judicial activism, and is inappropriate as a judicial matter in a precedent-based system, and this is true without regard to whether the “right” thus “established” is one beloved of conservatives or liberals. So you are right that it is a “political question” whether the Court may act thusly, but this is the whole point: the Court is not supposed to (but is) usurping a political/legislative role when it “creates” a right thusly.
Now, in practice, while “judicial activism” could occur, and be detected, and would be improper, regardless of whether the political outcome was “pro conservative” or “pro liberal,” in practice the results of judicial activism skew liberal. But if a judge purported to find that, say, the equal protection clause created a “fundamental right to life in a fetus,” a position that’s never been recognized by the courts or the framers, I’d find this just as improper as any other form of judicial activism. It’s just that, judges being what they are, I can’t think of many such instances of short-cutting to achieve conservative political ends as I can of liberally-driven departure from existing law.