# OMG Rehnquist said what?? **URL:** \ **Category:** Great Debates\ **Created:** [January 2, 2005, 9:12am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677 "2005-01-02T09:12:36Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 3, 2005, 9:11pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/21 "2005-01-03T21:11:35Z")
Also . . . while I give Congress no free pass, how is the confirmation process supposed to forestall judicial activism? 1. Quiz him about substantive issues? He’ll likely (perhaps properly) refuse to answer on the grounds that it would be too hypothetical, i.e. an advisory opinion. 2. Quiz him about his jurisprudential theory? But what’s to prevent him from saying he’ll be a modest and principled justice who just follows the rules? Everyone’s going to say that. How is the somewhat-ceremonial confirmation process going to get the guy to admit that once on the bench he may do whatever he wants? 3. Could he even answer the question truthfully? How is he going to know what’s going to happen on the S.C.? 4. What if, as mentioned before, he “grows in office” from a modest constitutionalist (the original perception of Souter) who could honestly give “non activist” answers at his confirmation, to a darling of the law professoriat swanning about to burnish his legacy by “discovering” new and non-existent rights under every rock, precedent be damned? Where’s the check and balance then ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 3, 2005, 9:30pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/22 "2005-01-03T21:30:52Z")
> [@Huerta88](#): > > 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. I can accept your definition, more or less, as describing the antithesis of “judicial self-restraint.” The problem with whether the court is “creating a right” is in whose understanding of the broad-brush literal language of the Constitution is to be applied. What the heck are the “privileges and immunities” of U.S. citizens which no state may abridge? How does a punishment get classified as “cruel and unusual”? And the one that’s caused so many debates here: The Federal government and the states are entitled to deprive citizens of life, liberty, or property, provided that they do what? What is “due process of law,” and how is failing to grant it recognized? But beyond that, sir, there’s a real problem. “Judicial activism” is a catch phrase for “rules in a way I disapprove of” – even with something as clearcut as a state mandating a prayer to be said in schools. (If you hold that the right to be free of mandated religious belief imposed by law is not a protected “privilege and immunity,” then I think we have nothing further to say to each other, save perhaps in the Pit.) The same thing holds with the gay marriage decision in Massachusetts – under the decision there, if two adult persons of opposite sex can agree to contract a marriage, then it’s a denial of equal protection to forbid that privilege to two adult persons of the same sex. It may be an arguable reading of what “equal protection” covers, but to hear the SSM opponents gripe, the court invented a “right to gay marriage” out of whole cloth, instead of applying an established constitutional principle in a way they dislike. And I don’t even want to get into _Romer_ and _Lawrence_ along the same lines. But “judicial activism” is not historically identified with modern liberal principles – the readings of the contract clause in _Lochner_ and related cases, and the writings of the Four Horsemen show _laissez faire_ conservativism read wholesale into the Constitution by a novel set of arguments by extreme conservative justices. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 3, 2005, 9:44pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/23 "2005-01-03T21:44:05Z")
> [@Polycarp](#): > > But “judicial activism” is not historically identified with modern liberal principles – the readings of the contract clause in _Lochner_ and related cases, and the writings of the Four Horsemen show _laissez faire_ conservativism read wholesale into the Constitution by a novel set of arguments by extreme conservative justices. 1. That’s fine, and I’m really not kidding about not liking it wherever it shows up, and regardless of whose ox is being gored. The contracts clause has been kicked from pillar to post (including in, IIRC, _Blaisdell_, in which the court basically said (paraphrase) it was okay for prairie populists to grant forgiveness of mortgages, never mind those pesky mortgage contracts). I’m not too cool with that. Some of the Commerce Clause cases were championed by “conservatives.” Hell, Elizabeth Dole, that dingbat, was the named party in the coercive case forcing S. Dakota to raise its drinking age. Her solid GOP credentials do not, to put it mildly, make much difference to my disapproval of the outcome of that case. 2. I am not sure if the privileges and immunities clause has anything to do with prayer in school, or has really ever been seriously suggested to. Don’t you mean the establishment clause? Or is the P&I, in your view, effectively the catch-all guarantor of all “fundamental” personal rights? If so, that is not necessarily a majority legal view. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [January 3, 2005, 10:12pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/24 "2005-01-03T22:12:03Z")
Damn, **Huerta88** has left me with nothing to say here. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 3, 2005, 10:38pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/25 "2005-01-03T22:38:21Z")
> [@Huerta88](#): > > 1. That’s fine, and I’m really not kidding about not liking it wherever it shows up, and regardless of whose ox is being gored. The contracts clause has been kicked from pillar to post (including in, IIRC, _Blaisdell_, in which the court basically said (paraphrase) it was okay for prairie populists to grant forgiveness of mortgages, never mind those pesky mortgage contracts). I’m not too cool with that. Some of the Commerce Clause cases were championed by “conservatives.” Hell, Elizabeth Dole, that dingbat, was the named party in the coercive case forcing S. Dakota to raise its drinking age. Her solid GOP credentials do not, to put it mildly, make much difference to my disapproval of the outcome of that case. Thanks! Amusing that we hold similar feelings about Sen. Dole, coming at it from opposite directions! 🙂 > [@](#): > > 1. I am not sure if the privileges and immunities clause has anything to do with prayer in school, or has really ever been seriously suggested to. Don’t you mean the establishment clause? Or is the P&I, in your view, effectively the catch-all guarantor of all “fundamental” personal rights? If so, that is not necessarily a majority legal view. No, it was a **state** law that I found fault with in the school prayer example. And obviously the Establishment Clause _per se_ deals with _national government_ actions – I presume you have no problem reading “Congress” to also apply to an Executive Order, a departmental regulation, a treaty, or whatever that is not formally an act of Congress. Clearly there’s longstanding case law (White C.J. was I think the first to find it) for at least selective incorporation of the Bill of Rights guarantees as against state act in Section 1 of the Fourteenth Amendment. But exactly where is disputed. I hold to the P&I clause, seeing it as a “reach” to apply SDP. So: mandative school prayer is forbidden by the Establishment Clause – as against the Feds. Because it’s a Constitutional guarantee of a right which American citizens enjoy, it’s a “privilege and immunity” into which the states may not encroach. To say that it’s a liberty which may not be abridged without “due process of law” and that any such law would not be in conformance with the supreme law of the land is, IMO, stretching matters for a justification when a more elegant formulation is at hand in the same sentence of the Constitution. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 4, 2005, 12:06am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/26 "2005-01-04T00:06:07Z")
We have indeed explored the meaning of “judicial activism” on this board (surprised?), and have been able to conclude that it is indeed in the eye of the beholder - a few bitter-enders such as yourself notwithstanding. That said, even if it’s real, it is by no means obvious or agreed to by all that it is what a court should not properly do. That is a political question, no matter what the blog-reading ideologues think - and yes, the judiciary is a political institution, just as the executive and legislative are. > [@Huerta88](#): > > Also . . . while I give Congress no free pass, how is the confirmation process supposed to forestall judicial activism? > > 1. Quiz him about substantive issues? He’ll likely (perhaps properly) refuse to answer on the grounds that it would be too hypothetical, i.e. an advisory opinion. Yes, and why do you say “properly”? Allowing nominees to evade questions is an example of the excessive deference the Senate has lazily fallen into in recent decades, rather than fulfill their obligation to _advise and consent_. If a nominee is evasive, nonresponsive, or politically unpalatable, it is their right and duty to vote No. > [@](#): > > 1. Quiz him about his jurisprudential theory? But what’s to prevent him from saying he’ll be a modest and principled justice who just follows the rules? That’s where you have to go into his record on cases he’s ruled on, and on other writings and teachings he’s given, and on testimony from colleagues. > [@](#): > > 1. Could he even answer the question truthfully? How is he going to know what’s going to happen on the S.C.? Fully and honestly will do, and then the Senators have to use their best judgment. > [@](#): > > 1. What if, as mentioned before, he “grows in office” from a modest constitutionalist (the original perception of Souter) who could honestly give “non activist” answers at his confirmation, to a darling of the law professoriat swanning about to burnish his legacy by “discovering” new and non-existent rights under every rock, precedent be damned? Where’s the check and balance then The other 8 members of the court. That’s why there’s more than 1 of them. If 1 is as wrong as your caricature has it, the others can argue with him, or at worst vote against him. If all 9 agree, perhaps the one who’s wrong is you. This is all 8th-grade civics class stuff. Why do you choose to contest it? This is silly. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 4, 2005, 12:40am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/27 "2005-01-04T00:40:19Z")
Wrong. What’s silly is (though I’ve seen you [overreach](http://boards.straightdope.com/sdmb/showthread.php?t=287438&page=3&pp=50&highlight=victory) yourself with this propensity [before](http://boards.straightdope.com/sdmb/showthread.php?t=287438&page=4&pp=50&highlight=victory)) the burning desire to didactically declare legal arguments settled based on your, um, incomplete knowledge of the law, pronounce all who disagree with you a marginalized minority, and to begin the Icky Shuffle in the endzone. “Judicial activism is in the eye of the beholder” is by no means a settled principle. I’ve provided an outcome-neutral definition of it. Even if you don’t agree that letting judges practice “activism” by such (outcome-neutral) definition is a **bad idea** , you will be hard pressed to dispute that finding new rights and prohibitions where none were known to exist before is, well, properly described as more “active” than a philosophy of not searching through the penumbras for such new emanations. And, if you have an understanding of the principles of stare decisis, res judicata, and common law precedent that fundamentally animate Anglo-American (especially American) jurisprudence, you will have to contend with the fact that “more activist” is probably not the most likely answer to “what sort of jurisprudence did the American people adopt and mean to adopt and authorize their judges to carry out?” Preoccupied with your endzone gyrations following your self-declared consensus that there is no such thing as judicial activism, you’ve chosen not to address any of these points. You haven’t, in your previous posts on judicial activism, convinced me that your knowledge of eighth-grade civics, let alone law, is comprehensive, infallible, and probative of your right to begin the funky-chicken victory dance, so I don’t feel obliged to join in. Seriously: Did **your** eighth-grade history class teach you that (a few “bitter enders” notwithstanding) the ab initio source of clear constitutional legitimacy or an absolute constitutional right or prohibition, **in the first instance** was (1) “fundamental rights,” which were however demonstrably not mentioned or directly supported anywhere in the Constitution, its legislative history, or previous case-law? (2) the infallible word of 5 (oops, doesn’t require 9) unelected people in black dresses (albeit two or three of the dresses might have nifty gold lace or a dickey attached)? If so, it is very sad that you were born too late to avail of GWB’s “tranfer from a failing school district” program. If not, and my teachers certainly never inflicted any such historically- and legally-unfounded notions on me, the debate is far from as simple or settled as you want to pretend it is, in lieu of answering legal points that you don’t like and can’t deal with, though as I’ve noted, you seem to be a big fan of that as a rhetorical tactic. ---
**Author:** ![laigle](https://avatars.discourse-cdn.com/v4/letter/l/ce7236/32.png) [@laigle](https://boards.straightdope.com/u/laigle)\ **Post date:** [January 4, 2005, 2:10am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/28 "2005-01-04T02:10:05Z")
It’s easy enough to cite examples of real judicial activism. The problem is that there is no remedy to judicial activism which cannot be used to coerce political obedienc ein the courts. As it stands, the benches gradually turn over and the new judges may overturn bad decisions. You can speed that up by imposing shorter terms, but again you get into a situation where you coerce judges to make political, activist decisions. If you want to see what happens when you chain judges to politics, look at how the quality of decisions falls as you go down the ladder. Lower judges are hoping for higher appointment, so the are highly political. The lower you go, the more political you get. Until you get down to the \ local elected judiciary, the dregs of the legal system. This is where you get the decisions that requisite school prayer is constitutional, that walking on old peoples’ lawns merits public flogging, that seperate but equal doesn’t mean you, pal. It’s only once you get way up in the ivory towers that you see a balanced, reasoned judiciary. Until you get to the Supreme Court, where the judges never have to seek appointment to a higher office, ever. At that point, where judges are completely free of political considerations, they can make fully independent and unappealable decisions. Or, if they happen to be Scalia, finally engage in the childish megalomaniacal lunacy that would have blocked them from higher office before. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 4, 2005, 2:31am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/29 "2005-01-04T02:31:11Z")
> [@ElvisL1ves](#): > > We have indeed explored the meaning of “judicial activism” on this board (surprised?), and have been able to conclude that it is indeed in the eye of the beholder - a few bitter-enders such as yourself notwithstanding. We have? Really? Was there a board-wide vote that I missed? Who is this “we” of which you speak? **Huerta** is holding up nicely on the substantive law front, and I don’t have anything to add to his comments there. I just wanted to point out yet another example of the kind of bald, conclusory, and utterly unsupported assertions that you excel at making. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 4, 2005, 2:41am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/30 "2005-01-04T02:41:41Z")
“. . . childish megalomaniacal lunacy that would have blocked them from higher office before . . .” I could say the same about SDO’C’s angels-on-the-head-of-a-pin issue parsing: _This racial preference; clearly unconstitutional; this one, clearly constitutional; but only for, like, 25 years, probably for thus the Oracle spake unto me . . . ."_ Your admiring **endorsement** of elitist “ivory tower” thinking is almost refreshingly honest, so I won’t go into all the many reasons that the view of ascending circles of an ever-wiser judicial episcopacy, culminating in the ineffable wisdom and fairness of the least-accountable deified jurists, is not only unconvincing, but creepy, to me. Suffice to say that to suggest that judges at these rarefied levels are not playing to the peanut gallery is to miss the much larger fact that they are often, instead, playing the much more megalomaniacal play to Future History and the Judgment Of All Posterity And their Personal Jurisprudential Legacy, as limned by the soon-to-be adoring hagiographers in the professoriat. This is better? Or, they could just as readily be indulging whim, caprice, boredom, senility, or all four. I had the opportunity to speak with one of T. Marshall’s ex-clerks. Though he admired him in general, he noted with some bemusement that the Justice had left standing orders that if an emergency petition from a Death Row inmate needed to be acted on when he was at home, the clerks should simply submit a vote in favor of granting the petition, without disturbing him at home – and this at a time **after** capital punishment had been fully re-instated. Now **there** an inspiring and principled way of applying the law of the land to a particular “case or controversy” – not bothering to get out of the La-Z-Boy to even consider the facts or phone it in. As another real-world example of why your preference for unelected Platonic guardians and your apparent abhorrence of the democratic process in electing judges may not always corellate with actual justice: There has been a recent spate of publicity over more or less bogus/opportunistic patent litigation actions brought by shell companies in the backwoods of East Texas, where they hope to enlist politically-connected plaintiffs’ class action lawyers and stick up big corporations for quick settlements on non-meritorious patents that purport to cover, well, every form of Internet commerce, say. [http://www.usatoday.com/money/industries/technology/maney/2004-11-23-maney\_x.htm](http://www.usatoday.com/money/industries/technology/maney/2004-11-23-maney_x.htm) Now, patent cases can’t be tried in state court, so the courts that are allowing themeselves to be used as the tools of these stickup artists and tacitly encouraging the swarm of dubious filings are, by definition, federal, unelected benches. Yet, they rule heavily, disproportionately, in some cases, almost unanimously, in favor of any plaintiffs represented by their scumbag ex-law partners in the plaintiffs’ law firms (the source of most federal judges there, as well as state judges). Funny how the federal robe doesn’t, always, confer impartiality and wisdom or defeat cronyism and lack of legal talent. Oh, the kicker? East Texas defense lawyers in other cases now reportedly often do their darndest to get their cases before state court judges, not federal – yes, those bad old stupid elected state court types. Why? Because an elected judge, no matter how venal you want to assume their impulses are (and you apparently do), can’t show completely blatant favoritism to one side of the bar or another, given that either side can campaign against them come next election time. No such restraints on the federal judges. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 4, 2005, 2:41am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/31 "2005-01-04T02:41:44Z")
Okay, “judicial activism” can be the antonym to “judicial self-restraint.” For example, a case is duly decided and it is discovered that while there is statute law governing the particulars of the case, there is no prescribed remedy in the statute. Does the judge identify a remedy by parallel to similar cases, or does he rule in favor of the winning party, and suspend final disposition of the case until the legislature has a chance to act and specify the remedy? The first is activism; the second, self-restraint. As used by vocal conservatives these days, though, “judicial activism” is a catchall phrase for any decision that interprets constitutional law in ways they dislike, whether it be simply reading a prohibition broadly or understanding a broad-language guarantee of rights to include a claimed right, or even construing the constitution narrowly where explicit language prohibits something a claimant thinks he’s entitled to do in a public office (e.g., Roy Moore). So I’d ask **Huerta** and/or **laigle** , and any other members who choose to do so, to identify up to ten specific examples of what they consider “judicial activism” – trying to make their choices as widely distributed as possible, so that we do not get bogged down in, e.g., abortion/unborn rights to the exclusion of everything else. In the interim, and granted that malfeasance in office (which **Huerta** brought up) is probably grounds for impeachment under “good behavior,” I’d like to see us parallel this hijack with the idea which the Chief Justice offers that impeachment is an inappropriate technique for opposing someone of a conflicting political philosophy – reference specifically to Federal judges, but it might be interesting to look at it in the broader context of all Federal officials as well. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 4, 2005, 3:16am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/32 "2005-01-04T03:16:12Z")
Can you clarify, **Polycarp**? You mention the proposition that: _impeachment is an inappropriate technique for opposing someone of a conflicting political philosophy_. As we’ve been batting back and forth (well, some of us) there is a distinction between “someone of a conflicting political philosophy” and “someone who is willing to enact his political philosophy by dint of jurisprudential shortcuts.” Indeed, it is possible to oppose someone of the **same** political philosophy for trying to use the judicial process as a stalking horse for issues more properly left to the Legislature. **Bricker,** IIRC, nicely illustrates this contradiction. ISTR that he has stated: (1) he would favor enactment of “same sex marriage” by his State Legislature; but (2) he would oppose, on grounds of improper judicial activism, the imposition by a federal judge of the very substantive policy he’d just as soon see enacted otherwise. Can you clarify whether you really want to discuss whether “political philosophy” **alone** can legitimately be grounds for removing federal officials (not a nutty concept, given that lots of federal employees are de facto “impeached” on purely partisan grounds every four years when the Administration changes), or is the issue whether there should or could be impeachment (or some quasi-impeachment) remedy for judges who (allegedly) abuse the judicial process to advance personal policy goals? ---
**Author:** ![Kel\_Varnsen\_Latex\_Division](https://avatars.discourse-cdn.com/v4/letter/k/aeb1de/32.png) [@Kel\_Varnsen\_Latex\_Division](https://boards.straightdope.com/u/Kel_Varnsen_Latex_Division)\ **Post date:** [January 4, 2005, 3:21am UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/33 "2005-01-04T03:21:56Z")
> [@](#): > > Rehnquist is fond of citing the example of President Franklin D. Roosevelt in the 1930s. In his first term, a conservative Supreme Court struck down many of Roosevelt’s New Deal laws. After winning a landslide reelection in 1936, Roosevelt struck back and proposed to change and expand the membership of the Supreme Court. > > Although his “court packing” plan failed, Roosevelt succeeded nonetheless, Rehnquist noted. > > “President Roosevelt lost this battle in Congress, but he eventually won the war to change the judicial philosophy of the Supreme Court. He won it the way our Constitution envisions such wars being won — by the gradual process of changing the federal judiciary through the appointment process,” he wrote. Huh? Is Rehnquist forgetting about the switch in time? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 4, 2005, 2:35pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/34 "2005-01-04T14:35:26Z")
> [@Dewey Cheatem Undhow](#): > > We have? Really? Was there a board-wide vote that I missed? Who is this “we” of which you speak? I already mentioned dead-enders. Now pay attention - and you can do your own searches too, ya know. **Huerta88** , as usual, you’re talking past points which make you uncomfortable but are nonetheless basic. I don’t respond to strawmen. Good day. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 4, 2005, 3:45pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/35 "2005-01-04T15:45:33Z")
> [@ElvisL1ves](#): > > I already mentioned dead-enders. Now pay attention - and you can do your own searches too, ya know. > > **Huerta88** , as usual, you’re talking past points which make you uncomfortable but are nonetheless basic. I don’t respond to strawmen. Good day. Which points are those? How are they basic? What is a “dead-ender?” Which strawman are you talking about? The one you created by declaring a consensus that’s never existed? It’s interesting that you accuse me of “talking past points.” Given that I (accurately) demonstrated that you’d been doing that, about five points up, in absolutely ignoring four or five actual, specific legal points I’d raised, in favor of declaring your victory in four different ways when you’d yet to make a single “point.” Honestly, which legal “point” do you think you’ve made? Declaring victory on issues you do not (and I increasingly believe, cannot) understand is not making a point. Or didn’t your criminally negligent eighth-grade teachers teach you that, either? I’m serious: Have you ever read a single one of the cases that we’ve discussed? I’ve seen no evidence of it. Please point me to a single intelligent discussion by you raising a single legal point that was new or probative. Yeah. Please remember: declaring that you are right is not the same, or anything close to the same, as proving a legal point. My eighth grade “Law For Teens” textbook had a far firmer grasp on legal argumentation than you do, though, so I doubt you will ever grasp this basic rhetorical point. Please: stay out of matters that are above your ken. Or, as you will no doubt summarize it: **Elvis** wins!!! He rulezzzz! Man, how they’ve passed you over for the S.C. post is a mystery and a travesty. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [January 4, 2005, 4:10pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/36 "2005-01-04T16:10:59Z")
> [@ElvisL1ves](#): > > **Huerta88** , as usual, you’re talking past points which make you uncomfortable but are nonetheless basic. I don’t respond to strawmen. Good day. One more request, s.v.p. . . . could you have the goodness, when attempting to criticize me, not to plagiarize my earlier demonstrations of your own failings? > [@Huerta88](#): > > the debate is far from as simple or settled as you want to pretend it is, in lieu of answering legal points that you don’t like and can’t deal with, though as I’ve noted, you seem to be a big fan of that as a rhetorical tactic. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [January 4, 2005, 8:51pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/37 "2005-01-04T20:51:36Z")
> [@laigle](#): > > It’s easy enough to cite examples of real judicial activism. The problem is that there is no remedy to judicial activism which cannot be used to coerce political obedienc ein the courts. Aha! Not only has **Huerta88** left me something to say but it is my specialty, producing “solutions” for situations others don’t even see as a problem! The remedy as I see it goes like this: The federal judiciary is regulated by statute so what we need is to change federal law. Prohibit courts from overturning practices and precedents older than 25 years. The time limit would give opponents or halt the practice or vacate the ruling before it became necessary to resort to constitutional amendment. ## This plan would still leave plenty of gray area for tinkering with past rulings even after they become permanent but the outright judicial enactment of social policy in defiance of past jurisprudence would be illegal. Impeachment is a pretty blunt instrument to enforce this law but offenders could be sanctioned by the Judical Conference and no further cases assigned to them so unless they were a member of the Supreme or an appellate court their opportunity to do further damage would be over though they would remain on the public payroll. In this laymen’s view that wouldn’t lead to political coercion of judges. Not that I couldn’t be wrong. > [@Polycarp](#): > > Okay, “judicial activism” can be the antonym to “judicial self-restraint.” For example, a case is duly decided and it is discovered that while there is statute law governing the particulars of the case, there is no prescribed remedy in the statute. Does the judge identify a remedy by parallel to similar cases, or does he rule in favor of the winning party, and suspend final disposition of the case until the legislature has a chance to act and specify the remedy? The first is activism; the second, self-restraint. I wouldn’t agree with that assessment. I have no problem with “judge-made law” _per se_. Legislatures simply can not forsee every possible outcome and judges typically “fill in the blanks”. Fine. My concern are judges who go beyond this to enact changes in social policy. That’s what I consider an “activist judge” or “legislating from the bench”. > [@](#): > > So I’d ask **Huerta** and/or **laigle** , and any other members who choose to do so, to identify up to ten specific examples of what they consider “judicial activism” – trying to make their choices as widely distributed as possible, so that we do not get bogged down in, e.g., abortion/unborn rights to the exclusion of everything else. ## Brown v the Board of Education ( anti-segregation ruling ) Roe v Wade ( pro-abortion ruling ) Goodridge v. Department of Public Health ( Massachusetts pro-gay marriage ruling ) Lawrence and Garner v. Texas ( pro-sodomy ruling ) > [@ElvisL1ves](#): > > I already mentioned dead-enders. Now pay attention - and you can do your own searches too, ya know. > > **Huerta88** , as usual, you’re talking past points which make you uncomfortable but are nonetheless basic. I don’t respond to strawmen. Good day. ## I don’t want to pile on but you haven’t proven your claims. You don’t really expect us to just take your word for it, do you? I mean, you know we tend to be skeptical here in Great Debates. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [January 4, 2005, 8:56pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/38 "2005-01-04T20:56:06Z")
Ah crap! The last sentence of my 2nd paragraph should read: "The time limit would give opponents **a generation to** halt the practice or vacate the ruling before it became necessary to resort to constitutional amendment. " :o ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [January 4, 2005, 9:05pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/39 "2005-01-04T21:05:40Z")
> [@2sense](#): > > The remedy as I see it goes like this: The federal judiciary is regulated by statute so what we need is to change federal law. Prohibit courts from overturning practices and precedents older than 25 years. The time limit would give opponents or halt the practice or vacate the ruling before it became necessary to resort to constitutional amendment. Whoa. All the power of an amendment without any of the work. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 4, 2005, 9:07pm UTC](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677/40 "2005-01-04T21:07:58Z")
> [@2sense](#): > > I have no problem with “judge-made law” _per se_. Legislatures simply can not forsee every possible outcome and judges typically “fill in the blanks”. Fine. My concern are judges who go beyond this to enact changes in social policy. That’s what I consider an “activist judge” or “legislating from the bench”. And, as noted before despite your claim that I haven’t “proven” anything, the judiciary is a political actor and is subject to existing political checks and balances. You don’t like what political actions it takes, whatever principle you claim is not only behind your objections but is a universal truth? There are remedies already, but they start with convincing others that there is a problem. Gotta back up a little bit in your discussion. Start by showing where the dividing line is between a legal interpretation (that will, inevitably, have an effect on people’s conduct in the future - if it didn’t, it wouldn’t matter) and “enacting changes in social policy”. What sort of rulings would you let a court continue to make? If you limit them to things that don’t affect society, there just isn’t much left. **[Huerta88**, I have nothing to discuss with persons who habitually refuse to participate in good-faith discussions, or have your trouble with simple coherence. Once again, good day. [Previous page](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677.md?page=1) [Next page](https://boards.straightdope.com/t/omg-rehnquist-said-what/282677.md?page=3)