Pretty straightforward. Put another way, should judges read the law narrowly, limiting the possible rulings they can make, or broadly, expanding the possible rulings they can make to the point that they can arguable create law through their rulings?
Judicial activism has certainly given us great effects in our society that legislators couldn’t or wouldn’t push through, but it has also given us bad effects that legislators were right not to push through. What these specifics are will of course differ from individual, but that is not important.
And while judicial restraint may prevent overreach by the court, it restrains the Court from making rulings that create law that likely need/should be created on a rights-basis that cannot strictly be derived from the letter of the law.
I don’t think there’s any functional difference – judges (and politicians) will continue to tend to see their own rulings and those they support as “restraint” and those of their opponents as “activism”.
Like Gorsuch said yesterday (paraphrased: “If you are happy with all your rulings, you’re probably not doing things right.” That’s a good test of restraint. Not foolproof, of course, but a good self-check.
A referee can and should flag a player for unsportsmanlike conduct for spitting in someone’s face. But a referee should not flag a team for unsportsmanlike conduct for running up the score by continuing to score touchdowns when they’re already leading 63-0.
The former is applying the rules as they are. The latter is “judicial activism” - injecting agenda or personal opinion into a legal matter.
“Judicial restraint”-ruling the way I prefer vs. “judicial activism”-ruling the other way.
Both are subject to interpretation as to what one considers to be the intent of the law.
AIUI, there are some people who consider judicial activism to be merely a tool, and good if used for what they consider good. They will say “Yes, Roe v. Wade and Obergefell v. Hodges were judicially activist, but it was *good *activism - we needed that support for reproductive rights and gay marriage.” They’d criticize judicial activism that went contrary to their interests, but on the grounds of it going against their desires, not because it was activist in itself.
Maybe these folks exist, but if so, they’re few and far between. Pretty much all the justification, from either side, of a particular ruling, is that that’s the best and most accurate interpretation of the law.
Perhaps, but there are absolutely different views on what the proper role of judges is.
Should a judge help shape the law and advance society’s progress? Is the Constitution a living document, that should be re-interpreted to keep pace with society’s evolving standards?
That’s the real key – if you’re a judge that believes that the same words now mean something different then they used to because it’s better for society if they do, then I’d say it’s fair to consider you an activist-leaning judge.
I thought, at least in the English common law tradition, that a major part of that judgement is trying to form a view of where the “centre of gravity” is of what the mythical “ordinary reasonable people” (in the old English tradition, “the man on the Clapham omnibus”) would interpret the law to mean in the given circumstances. Objective accuracy isn’t in question: subjective acceptance, or at least acquiescence, is more like it.
Sure, but this also applies to what I already said – each side will say (in general) that their own interpretations of the law are the most accurate and correct interpretation of what those words really mean and meant when they were written, and that their opponents’ interpretations are re-interpretations, or similar.
IANAL, and I don’t know the answer to this question. I’m mainly talking about the politics of it – that both sides will make, essentially, the exact same claims about their own judges, and the exact same accusations against their opponents’ judges.
The problem is that while none of these issue can be assessed with laser precision, the simple fact of change is at least somewhat easy to see.
In other words, a claim that this language means X, when the language in question is 140 years old and has not, in that time, been held to mean X is a change. Each side may argue their interpretation is more correct, but only one side is suggesting that their NEW interpretation is correct.
No, I think both sides do both of these things. Modern supposedly conservative judges state that “arms” includes weapons that didn’t exist when the BoR was written. At the time, “arms” did not include AR-15s, revolvers, 20 round magazines, etc.
I’m not saying that the conservative interpretation of this is wrong (I think it’s probably correct) – but it is “NEW”, at least the way you describe it in the above paragraph.
Suppose a future Supreme Court rules, 6-3 (with Justices Cruz, Gingrich, and Carson included in the majority) that Roe v Wade is dead letter law, and no state may constitutionally permit abortion because the rights to life set forth in the Fifth Amendment apply to the unborn person just as to the born.
That would be a result I’d favor, if reached legislatively. But the idea that the Fifth Amendment’s mention of “nor be deprived of life, liberty, or property, without due process of law” extends to the unborn is a change, a dramatic one. No one who approved the Fifth Amendment thought it operated to include the unborn. Deciding in 2017 that it does would be a change. And so the outcome here would be one I would strongly disfavor.
No, no. The law has always been about creating a rule, and then applying that rule to new situations that arise. “Change,” does not involve circumstances like that; the arms of today are not different in character than the arms which the adopters of the Second Amendment knew.
Now, one may argue that if only they had known, they never would have passed such language, but that’s the argument for legislative amendment.
I think I understand what you’re saying, and I don’t disagree. My larger point, though, is a general distrust of anyone (not necessarily my esteemed colleague Bricker!) or any party who claims to interpret literally and correctly (and I think conservatives make this claim more often in the US, at least lately), since they so obviously disregard this for issues in which they want to interpret law in a different way (or in the “NEW” fashion, as you put it, and as I described with my 2nd amendment example). Of course, IANAL.
I think this sentence is the part where we disagree. They seem pretty “different in character” to me. I’m sure many justices have probably ruled differently, but to me that is just the “NEW” interpretation which you described above.
Example one: Kyllo v. US. Does a “search” happen when police use infrared to look at a house?
The police used an infrared detector to see that the basement was radiating an unusual amount of heat. They used this information to get a search warrant and discovered a grow operation. The defense challenged the infrared observation as a warrantless search.
The government’s response was basically that there was no search: they stood on a public sidewalk and looked at the heat that the homeowner was radiating, just like they could stand on a sidewalk and look into his living room and use anything they saw there as grist for a warrant. The heat, they said, was in plain view from the sidewalk (if one had an infrared visor).
The court decided to reverse the conviction. Obviously there were no infrared visors in 1789 to guide their determination of what a search was, and obviously the author of the opinion wanted to see drug growers jailed, not set free. But ultimately, the way the Court resolved the issue was by asking what the essential characteristics of a search were. The police used technology that was not readily at hand to observe something that the owners wanted private and believed would be private, because the public does not walk about with infrared visors. So that’s an instance of a judge saying, in effect, “I don’t like this outcome, but if I am applying the law as written to the facts at hand, this is the result.”
A clever judge could easily have written an opinion upholding the search, pointing out that the infrared heat rays were radiating into the public sphere and looking at them, even with special tech, was not ‘searching.’ But that would be an example of deciding what you want the outcome to be and then crafting a rationale to support it. That’s the job of the lawyers on each side.