That is not the case when it comes to judicial review. As established by Marbury, judicial review of laws for constitutionality is an Article III power of the federal courts. It was not established by statute, and cannot be disestablished by act of Congress.
This also contradicts how the common law system works. “Practices,” as you term them, or laws, are considered valid and constitutional until challenged. As noted by the Goodridge court, the issue of gay marriage had never before come before that court. Back in 1997, I wrote a Note on gay marriage, and found perhaps three cases directly on point in the entire U.S. Ditto Roe - abortion had never previously come before the Supremes.
Under your solution, if no one brings a challenge to a practice within 25 years, then it cannot be thereafter challenged. Why should individuals who come to be affected by the practice in question after the 25 years have passed be barred from challenging the validity and/or constitutionality of a law simply because no one else bothered to do so before them?
Then put your own interpretation in. We don’t have to get back into it if you don’t like, but surely you do have a formed opinion, hopefully influenced by our past discussions.
If you can’t, or in this case won’t support your own claim that the term is not only meaningful but Obvious Received Truth, then I won’t do so for you. Clear?
The courts are actors in the political process. What’s unclear about that? There is no way for their actions to be separated from it either, so there is no point in discussing if it should be that way. Clear? The political process is everything that involves setting and following the rules by which people interact with each other. Clear? The legislative and executive create thosee broader rules, on the wholesale level of politics, the courts apply them and interpret them, on the retail level of politics. Clear?
Sometimes they have to (cf. Brown, for the most overused example). My comment about “universal truth” was in reaction to what I took to be your tone that it should be obvious to everyone that your philosophy of governance and judicial restraint is the only right way. Views, as carefully considered as your own, can differ anyway, and that’s a good thing, worth preserving.
Oh, here:
Consider that if it hadn’t ended that way there’s no reason to think it would have ended at all. The nature of the structure of elective politics at the time forbade effective participation by the parties who had the most direct interest in the problem, so the elective branches were never going to do it. Only the branch with guaranteed personal independence of its participants could do it. Allowing the members of the Warren Court to be impeachable by the Strom Thurmond faction that controlled the Senate, for the purported crime of “judicial activism”, would have made the decision suicidal for them.
:shrug: Perhaps we ought to try using the remedies we do have available first? I did bring up the Senate taking its Constitutional “advise and consent” role more seriously than it has in recent history. How about that, for starters?
Damn straight there’s a lot of gray area. Damn straight too that the courts’ role is to draw sharp lines into that gray area, and that is “changing” things by definition. That is a political role by definition. Deal with it. Dewey, if you have some substance to add here, please do so.
I have been posting on the fly but since it’s law we’re talking about, wanted to go back and substantiate the references I’ve made with specific cites to the extent anyone wants to check them out:
Administrative Office Of The U.S. Courts (Note Lack Of Any Discussion of Binding Authority Or Discipline Of Judges – Role Is Solely Advisory): http://www.uscourts.gov/faq.html
Perhaps I am using the term incorrectly. What I meant by “If you want to pull off pedantic” was “If you want to successfully adopt the rhetorical pose of a schoolteacher instructing a student”. And, of course, by “it helps to have something germaine to say” I meant that your criticism of my post wasn’t pertinent. Which it wasn’t. I wasn’t making rules about judicial decisions. Instead I was just offering my thoughts on the subject. That’s what sentences that begin “But for me, I think…” tend to mean.
Don’t take that last sentence seriously. It’s just an example of how to pull off condescension. You wait for the other person to say something stupid first and then you adopt a superior attitude. I don’t want to put you down. I value your experience in these matters where I know so little. Still, I would appreciate it if you would avoid the put downs as well.
Yes, I agree. My plan is not to abolish judicial review, which I’m not convinced would be a good idea in any case, but rather to regulate it by statute.
If you have a better term than “practices” that covers laws and public and private activities then let me know. I’ll be happy to use it. As for the common law, it has no special constitutional protection that I know of.
Because the constitutionality of the practice would have been established. If they wish to change the Constitution we have an amendment process for that purpose.
What seems clear is that we are talking past each other. Looking back it seems to be my fault. My original statement to you was muddled. The claim I am saying you haven’t proven here is just that some consensus had been reached in the past. That’s it.
What seems clear here is that you have developed an attitude about our misunderstanding and haven’t invested any energy into understanding my position. I have said already that I have no problem with the everyday lawmaking of the courts.
I nearly disagree that the courts sometimes must step in. Not that I don’t value opposing viewpoints. Tone isn’t always easy to determine in this medium. I think we should all try to extend the benefit of the doubt to others. I know I’m far from the most patient or considerate poster.
To me it seems that Jim Crow, terrible as it was, had been a fact of life for African-Americans since the end of Reconstruction. Not to downplay the cruelty and injustice of it but the country wouldn’t have come to an end if it had continued until a legislative solution was reached. Sure courts shouldn’t allow the country to go down the drain because of constitutional nicities but I don’t believe that’s been a problem since the Civil War.
I disagree. There is reason to think it would have ended. The very reason Congressional Reconstruction went as far as it did in establishing civil rights for blacks was because enough Northern whites were disgusted by the harsh black codes and treatment of African-Americans in the former Confederate States that they elected a Congress of Radical Republicans to rectify the situation. Many whites, North and South, were always sympathetic to the plight of blacks. Once the civil rights movement got moving and people, black and white, were willing to stand up despite the terrible price they knew they would pay, the oppression was doomed. Every harsh reaction to protestors created more martyrs. Reform came quicker via the courts, yes. But at the cost of distorting our political system.
I don’t understand how the Senate’s duty to confirm judges can limit their ability to enact social policy.
I have dealt with it. By incorporating it into my plan.
I’ve come into this debate very late, and mainly want to comment on the OP. Judicial Activism is something that I have a great deal of problems with philosophically, but, unless the judiciary in question has accurately judged the popular opinion of its intent - can be self-defeating.
A prime example of this is the whole Death Penalty debate here in the US, and in NYS specifically.
In the 70’s when the Death Penalty was struck down by the courts there was no immediate backsurge against it, because the population at the time had been leaning towards removal, anyways. However, one of the biggest reasons I believe the death penalty has become so strongly supported by the electorate is the number of murderers who have been released on parole, or commuted sentences by judges based on prison population or other considerations. This sort of thinking has released a number of serial killers, such as Arthur Shawcross, after he’d been sentenced to life in prison. Because of this, there is a plurality of voters who believe that unless a prisoner is on death row, there is always a chance of some judge deciding against any evidence to the contrary that there’s no reason to keep this or that person in jail any longer. A few months ago a local murderer in Rochester, the first felon sentenced to death in NYS since the last bit of judicial review against the cruelty of the death penalty, had his sentence changed to life in prison based on some reasoning that some observers (Of both political parties) feel is more than a little shakey. And, so, once again, the judiciary’s abhorance of the death penalty in NYS is pushing more people into fighting for a death penalty. :dubious:
Or, to put the same argument differently: How has the decision of the Massachusetts Supreme Court improved the situation for gay couples wishing legal recognition of their unions?
Going back to the OP, I think Rehnquist makes a very valid point for all judges, not simply on the Federal, or SCOTUS, level - the judiciary must be insulated from popular pressure. I don’t always like the things that can happen when a judge begins to lose contact with reality, or starts falling into the little tin god persona better known in surgeons. But that doesn’t change that the judiciary is supposed to be most resistant to swells in popular opinion of all the branches of government. Whether one supports or opposes Judicial Activism doesn’t really matter, I don’t think - every adult on this board can think of at least one issue where popular opinion and support has gone in favor of something that the courts shouldn’t have followed: Recovered (aka manufactured) memory is just the first that comes to my mind that I think most people on the SDMB will agree shouldn’t have happened.
I had asked where you’d draw the line between “everyday” and “changing” efforts, a distinction that seems important to you. I countered that you can’t; every verdict has a changing effect of some degree of magnitude. Every court action is “activist” to some extent.
“Nearly”, now?
It took an entire century after the Civil War to ensure that blacks had the right to vote. Even lynchings had continued into the 1960’s as well. When was there going to be a “legislative solution”?
Yet without the courts to strike down Jim Crow, the pro-civil-rights whites weren’t going to have the power.
Yes, indeed, individuals’ lives were saved, and their rights forced to be recognized, because of “judicial activism”. Your objection that the political system was “distorted” is a restatement of your view that the courts do not have a political role to play. Some explication of that, as mentioned above, would help you quite a bit.
What the hell? The Senate does not have a duty to confirm anyone for any job. They have a duty to advise and consent. That necessarily involves rejecting unsuitable appointees. If there’s a political judgment on the Senate’s part that a nominee’s political views and/or their suspected willingness to act on them are politically unacceptable, they have a political duty to reject them, and to advise the President as to who would be politically acceptable. Eight-grade civics class.
You have been shown an outcome-neutral definition for judicial activism. Why, then, do you persist in saying that it means “A decision someone doesn’t like?”
Rick, he and I are saying that, while it can be used in that outcome-neutral definition, it often is used in the “decision someone doesn’t like” way – as school-prayer cases have shown. I presume you are not a major critic of Bill of Rights incorporation theory; at least I haven’t seen you outspoken against it. Yet a case knocking down a mandative statement of belief or invocation as against the First and Fourteenth Amendments is termed “judicial activism” by many less-than-Constitutionally-scholarly conservatives.
I grant that something like Douglas’s decision granting an environmental group standing to sue as representing the welfare of a national forest is pretty much judicial activism identifying rights where nobody had ever seen them before at its most extreme.
My point is, Joe Maninthestreet doesn’t use the outcome-neutral definition; he applies the term to “what those durn pinko liberal justices are doing against Godly Amurrican values” whether or not his view of such values is Constitutionally sound or not.
Because this alleged neutrality is also in the eye of the beholder, and furthermore is not a factor in the cases most often used as examples of this alleged widespread problem. And because the objectionable behavior even that fits the definition is not related to how the courts in particular, or government in general, actually works and must work. The courts are activist by definition because they are participants in the process by definition. They do not and cannot exist in a bell jar. Why do you maintain this precious fiction that they do?
But the constitutionality of any law is presumed by the mere fact that it has been enacted. Whether a law is six months old or 100 years, it is constitutional - until it has been successfully challenged on constitutional grounds in a court of law.
As for your “pendantic” comment, I finally understand what you are saying. My “my child” comment was intended to be humorous. My apologies.
And I have already acknowledged that there is some gray area. Just because something doesn’t divide neatly in 2 doesn’t mean a distinction can’t be made.
Yes, nearly. Because, as I go on to say, “courts shouldn’t allow the country to go down the drain because of constitutional nicities”.
It did not. African-Americans were enfranchised during Reconstruction. Then they lost the right to vote as they might again in the future despite the pretty words in the Constitution to the contrary. This is the main problem with the current system. Trusting to the “checks and balances” built into the system instead of building them into the people themselves is the distortion of politics that I referenced. When the people entrust responsibility for their rights to others they become irresponsible. Once popular pressure dies down ne’er-do-wells in the government can erode those rights.
Certainly they would. This is the advantage of the extended republic. If local interests or passions lead to tyranny the national polity can step in. See Federalist #10. The challenge for the civil rights workers was just to keep paying the bloodprice until the repression was unacceptable to the national polity.
That a system sometimes works in positive ways does not show that it shouldn’t be scrapped in favor of something better. Yes, sometimes the courts are ahead of the curve. Sometimes not.
Judicial confirmation, in general, is among their duties. Of course they aren’t required to confirm any particular individual. Can you try to give me some credit over here? Or must I carefully frame even the most basic concepts so you won’t misinterpret them?
If you have any ideas on how the confirmation process can limit judicial activism I’d like to hear them. In the meantime, my plan concerns judges not judicial nominees. Once they become judges improving the confirmation process isn’t going to help, right?
I have no problem with that. What I am saying is that traditional practices shouldn’t be overturned by the courts. The presumption of constitutionality should adhere to them after a period of time.
Nice of you to apologize. Thanks. Perhaps I should have given you the same benefit of the doubt I advised Elvis to extend.
AIUI, the various marraige definition referenda across the ‘red’ zone states were put on the ballot in response to that judicial decision. Since those have passed, and until their constitutionality is challenged, again, AIUI, that means that a marriage liscense issued by MA is nothing more than an expensive piece of paper in those states.
I’m not trying to speak out in favor of this reaction. Personally, I agree that civil marriages have to be extended to all couples that desire one. I have some qualms with the simplistic assumption that allowing homosexual marriage will not cut out the legal bar to polygamy, but that’s just an extrapolation of the potential consequences of the change. Certainly no reason to discriminate against anyone.
Nothing has changed in those other states for gays, then. Gays couldn’t marry there before and they can’t now. But now there’s a state where they can. Ergo, gays are better off for the decision in every practical and immediate way.
In more abstract ways, there is now public discussion of the possibility elsewhere where there hadn’t been before. There are now legal obstacles that hadn’t existed before, true, but those can be reversed and overcome, much like Jim Crow laws were. Those state amendments do represent tactical setbacks as you say but still may be part of eventual strategic victories.
You haven’t even tried, and I’m not going to ask you again.
Gadzooks. Enlighten yourself about the Voting Rights Act of 1965, poll taxes, grandfather clauses, and literacy tests.
If you could get off this kick that “judicial activism” is not only definable but a fundamental problem, we could progress here.
You can best keep bad judges off the bench by not letting them *on * the … Aw, forget it. I’ve given you too much credit for good faith already.
phew I thought that second half of your post was directed at me, when I saw what the hamsters sent me, and was
As to your point that the discussion is, in the long run, going to prove to be an important step, I agree. I just don’t think that was the intent of the MSSC.
If anyone accuses you of not contributing to this thread I’ll be happy to defend you by pointing to the humor value of this little gem. Yes, I think forgetting it is best. I’ll leave you to your comfortable mastery of eighth grade civics.
Given the imprecise definition of the grounds on which an impeachment can move forward, you bet it is. A subpoena for records by a congressional committee is no different that a subpoena by a grand jury. Neither the committee nor the grand jury are required to hand down an impeachment/indictment, but they can. And that, my friend, is a threat. Or were you thinking somehow that the folks on the committee were “pretty sure” that no one would take this the wrong way?
