And I am also saying that the countries listed in the wiki article on “Constitutional Courts” have that power.
That’s not what I was saying. They do have that power. What part of my post is suggesting that, please? I thought I was being clear, but obviously not. I would like to correct it.
Yes, that is what I am saying.
First, there was the extensive power of judicial review on federalism grounds, exercised by the Canadian courts from 1867 onwards. I appreciate that federalism is not the same as individual rights. That is a fair point you are making. But, if the topic of debate is whether the Court’s ability to strike down statutes have major political impact, which might be expected to trigger politicisation, then the federalism issue is significant.
For example the courts struck down federal labour laws, anti-trust laws, and the Canadian “New Deal” package on federalism grounds, largely defeating the political goals of the federal government to regulate large chunks of the economy. That had a clear, long-standing effect on the basic power balance between Parliament and the provinces.
However, that did not have the effect of politicising the Court in a way analogous to the US. We never had a “Switch in Time that Saved Nine”, which was a very clear parallel, where the SCOTUS reversed itself on striking down New Deal legislation.
On the issue of individual rights, even though there was no explicit bill of rights, the SCC held that the basic structure of the Constitution implied certain political and free speech rights. Those rights were implicit in the Constitution. It used that principle to strike down an Alberta law that restricted freedom of the press, and Quebec laws that restricted freedom of religion and assembly. Note that in terms of the debate over political legitimacy of judicial review, that far exceeds anything SCOTUS ever did in this area: the SCC struck down laws based entirely on a theory of implied individual rights, without any express textual basis.
In addition, starting in the post-war period, the provinces and then Parliament began enacting statutory bills of rights and human rights codes. The SCC has held that these statutes have quasi-constitutional status and can override other statutes which conflict with them. That culminated in the Canadian Bill of Rights, a federal statute that was one of the forerunners of the Charter.
Now I certainly wouldn’t say that the Court was very active in using these powers. There weren’t many cases where they actually used them, because they were conscious of the issue of judicial legitimacy. That judicial caution was one of the factors that led to the Charter, because the Court repeatedly held that absent a clear constitutional directive, it had to be very cautious.
However, the federalism issues continued to be matters of hot political controversy, and the Court had little hesitancy in striking down statutes of both federal and provincial governments.
And I guess I’m just not following that. In a Westminster system, the job of the opposition is to oppose everything that the Government is proposing. There’s none of the talk about bi-partisanship that seems to be such a big part of the political debate right now in the US. In fact, I’ve been surprised by the depth of that debate here in the boards and in US media generally.
From a Westminster perspective, of course the Opposition opposes government measures and does whatever it can to block it. In theory, that should apply to judicial appointments, if they were considered partisan. But they aren’t so considered, so the Opposition parties treat appointments much more respectfully than is the case in the US
Case in point: one of the justices retired last spring, effective August 31. An election was scheduled for the fall. PM Harper appointed a new justice in the summer. It got about a day’s coverage.
Ok. Well, that’s not correct. At least some of the countries in that list (I didn’t check them all) lack the power I described. Many have some power to strike down laws, but it is either limited to striking them down on non-individual rights bases, or limited to subnational laws, or limited in some other way.
You wrote in a paragraph discussing the UK and other European countries that “It is true that the courts cannot strike down an Act of Parliament.” Looking back, I suppose you were referring only to the UK in that sentence, despite what follows it.
I don’t agree. I would expect striking laws down on federalism grounds, especially sub-national laws, to have a very different impact on the federal confirmation of judges from the impact of striking down federal laws on individual rights grounds.
Does the opposition ever control the legislature while another party controls the Prime Ministership? Can a minority opposition filibuster the confirmation of a judge? I’m pretty sure the answer to both question is no, at least in practice.
“Impressions” aside, I think it’s well established (read my links) that Scalia was a very conservative and flagrantly activist justice who was accomplished at disguiding his extremely partisan rulings behind a creatively constructed veneer of constitutional literalism. His track record in this is nothing short of breathtaking. I’ve provided a pretty large body of evidence here. You might also ask yourself why Republicans are having major hissy fits over even the thought of Obama nominating a replacement. To say that the Court is partisan and that Scalia was the dominant conservative is an understatement.
I thank Northern Piper for his informative posts that provided more detail and insight that I did, and he might want to address your latest responses. I just want to say that this last one is misguided on several levels.
You seem to be trying to make a big deal out of the fact that the parliamentary system doesn’t provide the same institutional separation of the executive and legislative branches. But as I already said, I don’t see how this is relevant to the issue of Supreme Court partisanship. That said, for the record the answer to the first question is that yes, it can and does happen in many important respects in the case of a minority government. The party of the PM is then different from the parties that form the combined opposition, often united in *ad hoc *coalition. Such a coalition cannot itself pass legislation although it can strongly influence it, but unlike the US presidential system, it has a far greater power: it has the power to bring down the government altogether and trigger an election.
But the thing you seem to be missing when asking about a minority opposition filibustering a nominee etc. is that parliament has no formal involvement in this process at all. They are not “nominees” at all but de facto “appointees”, appointed by the Governor General on the advice of the PM, meaning in reality it’s entirely the PM’s prerogative. At times there have been parliamentary committees to politely scrutinize appointees, but they had no real power and couldn’t block appointments. At best, the opposition or committee could appeal to public opinion and publicize their objection, as indeed happened when a Harper appointee was recently withdrawn for technical reasons, but they have no institutionalized power to block.
I’m not going to suggest that this is better than the US system – in fact, I think the US system of public scrutiny by an elected legislature is preferred. Yet it’s astounding how even-handed and non-partisan the Canadian Supremes have been even without this kind of confirmation process. The reason there hasn’t been a formal and binding confirmation process is simply that there hasn’t been any apparent need for one. And it’s not because the Court lacks the power of the US Supreme Court as you falsely claimed earlier – I cited some really major landmark decisions that had lasting impact on law and society. While the US Supreme Court for whatever reason is uniquely and severely divided along partisan lines and incredibly politicized despite the bipartisan Congressional scrutiny, a fact which is currently plainly evident.
When it comes to politically charged cases, which so many of them are, the US Supreme Court has mutated into a de facto quasi-legislative body in itself, yet entirely unelected and appointed for life. It’s a strange development mostly of recent decades and a strange sort of body to have in a democracy. And this is precisely why Scalia’s death threw Republicans into apoplectic fits literally within minutes of the news breaking, and why it’s become such a central election issue.
No, it’s not well established, your runon sentence notwithstanding.
Conservative, yes.
Flagarantly activist, no.
One of your links tried to define activism in a stupid way which you seem to be avoiding to admit. Do you endorse that definition? You seem to have backed away from it in a previous post when you said it was just one of your links, but then here we are again with your assertions of activism and no substantiation.
I’m not “backing away” from that. I said that overturning legislation is by definition defying the wishes of the legislature, that it is sometimes justified, but that if it happens a lot it’s a potential red flag that should be looked at. Kind of like some guy that was in a fight, but it’s OK because he was justly defending someone from bullies. Maybe. But if he’s in a fight every second day? And it’s always black people he’s beating up? Then you might want to look into it.
And if in looking at it one finds a consistent ideological bias, then one is probably dealing with judicial activism in proportion to the amount of evidence. And as noted in the links in this thread to lengthy previous posts, there is evidence in abundance. You’ll find those links just prior to the mention of the cited article The Incredible Polarization and Politicization of the Supreme Court, which I assure you is not a work of fiction.
You may choose to ignore the evidence or offer your own interpretation of what to most of us seems bleeding obvious, I can’t help that. Maybe you can tell all the Republicans to stop having hissy fits about Scalia’s replacement since it will just be one fair-minded judge replacing another fair-minded judge, right?
P.S.- a sentence isn’t “runon” just because it has more than one phrase. A sentence is perfectly well constructed if it expresses a single coherent idea in a logical flow that is easy to read.
You seem to be stuck on “defying the wishes of the legislature”. I’ve been talking about defining judicial activism as “readiness to overturn legislation”. I’ll ask again, do you endorse this definition? Because that definition is stupid - and that’s what your cite relied on.
And I answered it several times, most recently in the immediately preceding post and the link in it which leads to a myriad of other posts and links where all of this has already been discussed and cited. In short, I endorse it as a starting point subject to the caveats and additional criteria that would refute or confirm such indications of judicial activism. It’s a red flag, not a conviction.
I like it too. Perfect description of the Gang of Three. And causing Republicans to go into apoplectic fits upon the demise of one of them.
Your difficulty with parsing my sentences seems like a strange affliction. Perhaps it’s due to the same unfortunate defect that also affected your sarcasm detector. As I recall from an earlier conversation, that isn’t working either. On the bright side, however, your alleged linguistic difficulties only seem to occur in matters where you greatly differ with my views, which latest disagreement has now prompted you to unleash this surprisingly uncharacteristic and unseemly personal hostility. I simply think that this Supreme Court with the Scalia/Alito/Thomas/Roberts regime was ideologically driven and biased as all hell, and you don’t like to hear that. Fine, I get that, but I provided a good deal of evidence for it. And it seems that the majority of citizens are unhappy with this state of affairs. [PDF]
And yes, I think it’s fair to point out that this unfortunate situation does not prevail in other countries, even those that have equivalently powerful supreme courts exercising the same power of judicial review over legislation. It’s fair to point this out because it’s relevant and it shows that the problem is not intrinsic but is shaped by the political environment. You are entitled to disagree, of course, but I’m not sure how many are persuaded that your position is due to a divinely inspired revelation of the Founders’ constitutional intents. Some might think that you’re just engaging in ideological cheerleading of recent rulings on guns and political finance, rulings of such ideological extremism that they’ve never been seen in any other country on earth and, if there is a God, never will be.
I would ask again why you or anyone thinks that Mitch McConnell – the guy who tried to challenge McCain-Feingold back in 2003 when the Supreme Court still had a reasonably balanced makeup and therefore saw no merit in this preposterous challenge – recently declared that the Senate will not even consider a vote on any Obama nomination. No matter who it is. Why was this unconstitutional nonsense supported by all the major Republican presidential candidates? And why within minutes of the announcement of Scalia’s death did a staffer for Utah Republican senator Mike Lee immediately tweet a definition of “less than zero”, to wit: the chance that any Obama nominee will be confirmed? No matter who it is, needless to say.
See, here’s where your definition gets hazy. On the one hand, you think “readiness to overturn legislation” is a good starting point for defining judicial activism, but then you also like a different definition that focuses on personal views guiding decisions. I suppose both may be true, but they are completely different focuses. It seems more like readiness to use whatever criteria you wish to level attacks against justices you disapprove of.
Oh, my sarcasm detector is in good working order. It’s an issue with the source material I’m sure. But let’s look at the phrasing that you chose and that which I called out:
Think about how a person needs to parse this sentence. I can say, “I disagree”, but based on this it would be impossible to tell what I’m actually disagreeing with. Consider the ideas presented:
[ol]
[li]I think it’s well established that Scalia was a very conservative justice.[/li][li]I think it’s well established that Scalia was a flagrantly activist justice.[/li][li]I think it’s well established that Scalia was accomplished at disguising his extremely partisan rulings [does this also mean he wasn’t accomplished at disguising his non-extremely partisan rulings?][/li][li]This also necessitates that Scalia issues extremely partisan rulings[/li][li]I think it’s well established that Scalia used a creatively constructed veneer of constitutional literalism[/li][/ol]
If I disagree with just the last idea of constitutional literalism and say, well no, Scalia was an originalist in constitutional interpretation. What does that say about all of the other ideas presented in that single sentence. That’s what I mean when I say this sentence is tedious to parse. I agree Scalia was a conservative justice, but it’s this mish mosh of of presentation where you put out multiple parallel or orthogonal ideas that don’t adhere to a consistent theme that it just becomes tiresome to go through.
Take the latest post, where you link to a 5 page PDF about opinion surveys relating to SCOTUS structure. I suppose it’s related to the overall thread, sorta, but is there a point really? I can’t tell because it’s dropped seemingly for no reason and there is no quotation from the document. It’s from a place I’ve never heard of, they don’t seem to have a wiki article, and their political client list are all Democrats. I picked up a new term last month, a gish gallop. I never had use for such a term before, but it immediately comes to mind now. Sure, people may not like the machinations of the court, but we’re talking about judicial activism. Is this document related to that? I did a text search and couldn’t find any mention. That was the extent to which I examined the document.
Let’s look at another recent example:
Look at the first sentence I bolded. It starts with what seems like a question, but there is no question mark. There is a large apposite phrase that rather than further defining the subject, seems to introduce an unrelated tangent. So then I have to think, is there really a question there, or is this odd phrasing used as a way to make a roundabout point. I can’t tell, so I ignore the whole thing. Then, you assert plainly that this lack of consideration of a nominee is unconstitutional. That’s clearly false. It may be unwise but it is clearly within the bounds of the constitution. And the obvious response to this entire paragraph is that the folks in question are engaging in politics - they think their actions will work in favor of their ultimate goals, whatever those may be. I think Volokh stated it quite clearly:
In any case, I’d hardly call this unseemly personal hostility. I enjoy engaging, generally. And I’m trying to but based in part on the reasons above, it becomes less interesting.
I can’t be certain about the wider usage, but my definition of “judicial activism” is about creating new rights out of dubious inferences. And the only objective way to measure whether an inference is dubious is to look at history and precedent.
Meaning, suppose Law/Constitutional Principle X has been in existance for a long time and always been understood one way, and no one ever thought that this law would outlaw Y (which has also been around for a long time), and now some judge or judges come along and say “we find that Y is banned due to our interpretation of Law/Constitutional Principle X”, then that’s judicial activism.
OTOH, suppose Y itself is new - suppose the legislature or executive branch pass laws or do some action that is itself an expansion into an area without precedent, which raises a completely new question as to whether it conflicts with X or not - then I don’t think it’s judicial activism for a court to strike it down.
Again, I can’t vouch for this being what everyone else means with this term. But at any rate this is the type of judicial activism that I object to. And ISTM that the liberal wing of the courts have been much more willing to engage in this. And their defenders have tried to obscure this by focusing on a specious category of “judicial activism”, as wolfpup does here.
Scalia is no more partisan than his friend Ruth Bader Ginsburg. For every illogical partisan opinion you can point to (and lets be clear, most of his opinions do not fall into this category), I can point to at least two laws passed by a Republican legislature that he joined in overturning or a law passed by a Democratic legislature that hen joined in upholding.
Scalia is the dominant conservative because his judicial philosophy usually leads to conservative results. Sure, he bends the logic to reach those results sometimes but there is an entire generation of law students who have learned to flip to the Scalia opinion in a case to get the best understanding of the facts and the issues, he was a great writer and his legal analysis was frequently the best of the bunch. He became significantly more partisan in the last ten years or so but he has a better record of intellectual honesty than some of the liberal judges on the court.
I think the court is undoubtedly the least partisan branch of government, the way it was intended.
Your knowledge of grammar is lacking. There is no question mark because, grammatically, it isn’t a question. A sentence of the form “I would ask why you or anyone thinks …” is clearly a declarative and not an interrogative sentence. It’s not uncommon for a declarative sentence to have an implied question, but it’s still a declarative and takes a period. Interrogative sentences have a specific structure marked by inversion of the subject and predicate – “you are …” is declarative, “are you …” is interrogative. The next few sentences in the same post are interrogative – notice the predicate-subject inversion – and they do have question marks as they should.
As for my supposedly tangential apposite phrase, no, it’s immediately relevant. The point was simply about how deeply partisan McConnell is, and how this partisanship is shaping the politics of the Supreme Court. He felt so strongly about McCain-Feingold that he spent years first trying to block it and then trying to overturn it. Remember that this was a bipartisan law that was co-drafted by a Republican, passed by the House and Senate, and upheld by the Supreme Court in 2003. But McConnell’s objective was eventually achieved when the Supreme Court became populated by justices with a conservative majority, three of whom were particularly activist extremists. Now that the most eloquent and forceful of these extremists has died, McConnell will stop at nothing to try to replace him with at least an equal partisan if not a worse one. It’s all part and parcel of the same narrative that I’m trying to describe – the extent to which the Supreme Court has become incredibly politicized, and how far removed it is from being an impartial institution of justice.
I know what a Gish Gallop is, and I believe I’m looking at it. Rather than address all those many points that either I’ve already addressed or else are just gratuitous swipes at writing style, I’ll move on to this novel argument …
There are multiple possible definitions for judicial activism with overlapping scope that all arguably have some validity, and some may be more applicable than others in particular circumstances. Let’s accept your definition as an exercise, and see how the Roberts court fares against it with a couple of examples.
Example 1: Heller v DC
As Jeffrey Toobin notes in his New Yorker analysis, for nearly a hundred years …
… the courts had found that the first part [of the 2nd Amendment], the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms – but did not give individuals a right to own or carry a weapon.
Heller, then, was a re-interpretation of the Second Amendment overturning a hundred years of law and jurisprudence, and creating with indisputable clarity a new right – the individual right to own guns.
Here’s another interesting legal analysis, one which also mentions “the risks associated with exercising our newfound constitutional right to have a handgun in the home” (note my emphasis). But the most pertinent part is below, and what it principally deals with is the “dubious inference” part your definition. Incidentally, the “Bob Levy” referred to in the quote is Robert Levy, the chairman of the libertarian Cato Institute and the organizer and financier who brought the Heller case to the Supreme Court.
There is no better illustration of the abandonment of neutral principles by the Heller majority, and Bob Levy, than their cavalier disregard of what the Supreme Court has termed “the first principle of constitutional interpretation” — that the Constitution must be read to give effect to every word and that interpretations that render portions of its text “mere surplusage” must be avoided … In place of the “no surplusage” principle, which dates to Marbury v. Madison, we now have a new principle, for which Justice Scalia offers no precedent, that the words of a constitutional provision must have merely a “logical connection” with one another. It is particularly galling that the Constitutional text rendered “surplusage” by the Supreme Court is the militia language of the Second Amendment since, as the historians have documented, that language underwent several material changes during the deliberations of the First Congress, including moving its placement in the amendment itself. If the militia language were merely “explanatory, not operative,” as maintained by Levy, why was it the subject of such careful editing? The Framers apparently attached far greater importance to it than do Levy and the Heller majority. Nor do Levy and the Heller majority offer any account of why the Framers would place “explanatory, not operative” language in the Second Amendment, but not in any other provision of the Bill of Rights. http://www.cato-unbound.org/2008/07/29/dennis-henigan/heller-majority-wrong-unprincipled
Example 2: Citizens United v FEC
This one actually has been discussed at such length elsewhere that I’m just going to link to a post that lays out the details with an appropriate cite, rather than repeating it all here. But to wrap it up in a nutshell and see how it fares against your criteria for judicial activism, as I said in that post, Citizens United could have been a limited ruling on this one narrow issue alone. Instead, Kennedy and Roberts greatly broadened the scope of the ruling, going against the Court’s own recent precedents to engage in such flagrant judicial activism that, as the article concludes, ‘The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections’."
And then … it got worse! Citizens United basically deregulated contributions on behalf of candidates, but then McCutcheon v FEC went further and deregulated aggregate limits directly to candidates. Campaign finance laws have been in existence for more than a century in response to systemic abuses and political corruption, and the Roberts court has been steadily unraveling them through no fewer than five separate rulings, all overturning long-standing principles of campaign finance regulation and granting new rights to virtually unlimited political spending. The “dubious inference” here being an absolutist interpretation of the 1st Amendment that says the government is not allowed to control political spending because it’s “speech”, even though the government has in fact been doing it since at least the Tillman Act of 1907, and even though unlimited spending in fact obstructs the right of speech of the less well funded. It’s been noted that the Citizens United ruling alone has drastically re-shaped the political landscape, injecting money into politics on a scale never before seen in history. I’d say that’s pretty damned activist.
Yes, the court is the least partisan branch of government, but that’s not saying much, is it? Courts shouldn’t be partisan at all, and this one is practically indistinguishable from Congress – and not just any Congress, but the most bitterly divided Congress in living memory, if not of all time. A Congress so bitterly divided that the Republican majority is going to refuse to carry out their constitutional responsibility to even hold a confirmation hearing for a new justice until they can get their guy in.
And as for these alleged evil liberal judges, that seems like a pretty one-sided partisan view as opposed to an analytical one. Can you cite cases analogous to the narrow 5-4 rulings by the current conservative majority that caused the same kind of widespread outrage and legal questions about their constitutional validity?
Textualism is very much a procedural test. The reason it has become ideological is that liberals and Democrats prefer the approach where a judge gives them what they want without the bother of convincing a majority either of legislators or the electorate. That’s what is meant by judges making up laws.
Is Roe v Wade the best you can do? There’s a good reason it was a strong 7-2 with so little contention – it was a wishy-washy compromise decision that did nothing more than partly align the US with the rest of the civilized world on a basic human rights issue. It mostly upset the hardcore religionists, and the abortion debate continues to rage across the country, incredibly yet again a front and center political issue among Republicans. If you want to see an example of a definitive ruling on the matter here is one. The Supreme Court of Canada overturned abortion laws in their entirety on constitutional grounds more than a quarter of a century ago. Few even thought it was a “liberal” decision rather than a decision of the basis of constitutionally guaranteed human rights, and the issue has never been heard from again, excepting right-wing blogs and religious extremists.
So if wishy-washy Roe v Wade is the best example you have of alleged “liberal activism”, then you got nothing.
Been away for a while. The OP does not rule out litmus tests from the discussion. The OP himself doesn’t like litmus test criteria - interpreted as a yes or no based on a single criteria. Judicial philosophy is not binary and not a litmus test.
And since when does the constitution have to align with anyone (And IIRC Canada was one of those uncivilized countries at the time).
These are laws passed by democratically elected politicians. These laws were overturned based on “penumbra rights” :rolleyes:
They were just making shit up to overturn a law passed by the duly elected government of the state of Texas because they wanted a particular result.
Pro-choice folks here see Roe v Wade the same way.
Canada’s constitution is different than our own. If we amended our constitution to look like Canada’s then maybe we could reach the same result in an intellectually honest way.
Roe v. Wade is THE quintessential example or judicial activism.
Blackmun fashioned a right out of whole cloth. The notion of a “penumbra right” is about as bullshit as it gets. I’m pro-choice and its clear that Roe v Wade was an activist ruling by judges that put their opinions ahead of the opinions of democratically accountable politicians or the constitution. The constitution is a living document but it is not so flexible that it follows lockstep with the rest of the world. And the rest of the civilized world does not have broad rights to an elective abortion, unless you define “civilized world” to mean “mostly white countries plus China and India” because only 29% of countries have legal elective abortions. If you want a constitutional right to an abortion you probably needed a constitutional amendment… or activist judges on the supreme court.
The fact that you agree with it says nothing about whether or not it is activism. There were at least seven justices that agreed with it too and their rationale was pretty bad.
Ruth Bader Ginsberg (and other legal scholars from the left) have acknowledged that the opinion is weak. I am pro-choice and I understand why people think it was a pretty clear example of judicial activism.