Should judges demonstrate judicial restraint or judicial activism?

[Richard_Parker]

Which is more important to democracy:

(1) That politicians are able to foresee and predict every consequence of a legal principle they establish when they establish it, regardless of any advances in science and the other fruits of human reason long after they are dead; OR

(2) That legal principles be applied based on our most current and best understanding of facts, even though no one who represented The People in constructing that legal principle expected that result.

You cannot have both. One empowers elected officials over unelected officials, at the cost of binding our legal principles to outdated understandings of how the world works. The other ensures that our deepest principles continue to be applied to the best facts, at the cost of taking power away from the people and reposing it in an unelected bureaucracy. Both approaches will have some proportion of bad outcomes for both liberals and conservatives. In 2017, the proportions are that conservatives get more outcomes they like under originalist principles, so they mostly choose that one. Liberals get more outcomes they like under interpretations that read laws as setting up principles with evolving applications. But the mix depends on societal sentiment and the direction of social change. It could easily shift the other way.

Scalia et. al try to resolve this without biting the bullet. They contend that Congress will amend the Constitution to keep it up to date, so we can have the best of both worlds. But we can’t. That’s not actually how the real world works, as we’ve learned after experimented for a few hundred years. You really do have to choose between two imperfect options. They also contend that all other jurisprudence is boundless and just chooses outcomes it likes. This is also false. Both philosophies prohibit a judge from deciding a case based on the outcome they prefer. The historical inquiry involved in originalism is not objective science just like the social and scientific inquiry involved in other theories is not objective science. I do think it’s probably true that the jurisprudence preferred by most liberal justices has more room for intentionally or unintentionally injecting personal and political judgments into the process–but it’s not the kind of binary often set up by proponents of originalism.

There’s no clearly right choice. It’s a question of what you value more. I think a well-functioning democracy probably needs a powerful, elitist bureaucracy as a check on majority whims. But anyone who thinks it’s an easy call is not fully appreciating the downsides of each option.

[Bricker]

Example two: US v. Games-Perez, which was just brought to my attention today.

In Games-Perez, a criminal defendant was convicted of knowingly being a felon who possessed a firearm in violation of federal law.

The federal circuit courts, just to set the stage, can set binding precedent in their circuits. Most circuit opinions are issued by a panel of three judges, but for important matters that panel decision can be overruled by the entire circuit, sitting “en banc.” The en banc court can overrule prior circuit binding decisions; a panel decision may not.

Games-Perez was earlier charged in state court with a felony, but the state judge told him, repeatedly, that his sentence meant he was NOT getting a felony conviction. That representation was wrong, but Games-Perez says because of it, he believed he was not a felon.

So when the federal government tried him, he wanted to defend himself by pointing out he was not “knowingly” a felon. But the binding precedent in that circuit was that the word “knowingly” only applied to the possession of the gun. In other words, the government did not have to prove he was knowingly a felon, only that he WAS a felon, and he knowingly possessed a gun.

On appeal, the circuit panel upheld Games-Perez’ conviction, applying (as they had to) the binding circuit rule (from a case called Capps) about “knowingly.”

But then Games-Perez asked the entire circuit to rehear his appeal en banc. And one of the circuit judges, one who had been on the panel and voted to uphold the conviction, argued strongly that the court should overturn the conviction. It was unjust, he said, to allow the government to jail someone when each element of the offense is not proved, and for this crime, he said, the correct elements include not just being a felon, but knowing you’re a felon.

When the case was before the panel, I was bound by Capps and forced by my duty to precedent to countenance its injustice. Now, though, the case is before the en banc court. Here, Capps does not control my vote or require the perpetuation of this wrong, and here I believe it should be overruled.

[Bone]

That was from Gorsuch, right?

[bump]

@iiandyiiii

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.

See, I’d interpret “arms” as meaning small arms, i.e. pistols, rifles and shotguns. And those DID exist at the time that the BoR was written. Things like AR-15s, revolvers and 20 round magazines are just variants/improvements on a category that definitely already existed. And you could easily enough demonstrate an evolutionary chain of improvements from the Brown Bess muskets and Kentucky long rifles of that era to today’s high-tech marvels to show that they’re indeed, the same thing.

It’s all in the interpretation- one side can say that they’re all “arms”, and be absolutely right, and the other can point out that the concept of “arms” at the time did not include improvements introduced in the subsequent 200 some-odd years.

[Bricker]

@Bone

That was from Gorsuch, right?

It was!

[Bone]

@Bricker

It was!

It’s a principled position, but I may be misunderstanding the role of the panel decisions in the 10th. My understanding was that even at the panel level the federal appellate court in the 10th circuit could overturn precedent, and it was the district level where precedent must be observed. It’s strange that Gorsuch was on the panel and voting for en banc, when it seems like precedent could have been set aside at the panel level as well. I may be confusing this with the 9th circuit where the 3 judge panels are small because the court is so large.

[Revenant_Threshold]

@Bricker

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.

I think I too would strongly disagree with this notion; they seem pretty difficult in character to me. If they were not, would not muskets be as popular as modern firearms today? I have to admit, I don’t have any stats, but my loose guess would be that muskets as a class of weapon are not as widely made, bought, or owned as more modern guns today.

[k9bfriender]

@bump

See, I’d interpret “arms” as meaning small arms, i.e. pistols, rifles and shotguns. And those DID exist at the time that the BoR was written. Things like AR-15s, revolvers and 20 round magazines are just variants/improvements on a category that definitely already existed. And you could easily enough demonstrate an evolutionary chain of improvements from the Brown Bess muskets and Kentucky long rifles of that era to today’s high-tech marvels to show that they’re indeed, the same thing.

It’s all in the interpretation- one side can say that they’re all “arms”, and be absolutely right, and the other can point out that the concept of “arms” at the time did not include improvements introduced in the subsequent 200 some-odd years.

@Bricker

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.

Are arms really that similar with 250 years of improvements?

You could fire one bullet at a time. You had to load it through the muzzle. It was not very accurate. Your bayonet was likely to be more useful in pitched battle than the gun itself. A halfway decent musket was also pretty expensive, pricing them out of reach of most people.

Could the founding fathers have possibly imagined a mass shooting? Could they have even imagined the prevalence and ease of use of guns today?

I would say that firearms have changed very much in character. Not saying that they should have no protection under the second, but it should be acknowledged that they were not thinking of anything remotely similar to the types of firepower we have at our fingertips.

[dba_Fred]

Isn’t this the time in the discussion when somebody points out that the machinery and methods used by the press are pretty different in character from when the 1st Amendment was passed?
And I don’t have any stats but my loose guess would be that printing devices as a class of information dissemination were not as widely made, bought, or owned as modern printing devices. And TV, radio and the internet were methods not available to the press of that time.
So if we apply 1776 to guns do we also apply it to the press so we remain consistent?

[k9bfriender]

@dba_Fred

Isn’t this the time in the discussion when somebody points out that the machinery and methods used by the press are pretty different in character from when the 1st Amendment was passed?
And I don’t have any stats but my loose guess would be that printing devices as a class of information dissemination were not as widely made, bought, or owned as modern printing devices. And TV, radio and the internet were methods not available to the press of that time.
So if we apply 1776 to guns do we also apply it to the press so we remain consistent?

Well, yeah.

I was thinking about expanding into that as well.

That is another form of judicial interpretation that could be considered to be activism, as it was not something that would have been thought of by the founders.

[Trinopus]

Isn’t the principle of maximizing liberty an interpretive idea that ought to be respected?

The press, or guns: either way, interpret it in the way that lets the people have the greatest access to what they want.

This follows from the idea that the government must have a good reason to ban anything, and that the default is always “permitted until banned.”

The framers never thought of legalizing pornography…but it is legal, because the government doesn’t have a valid reason to ban it. The framers never thought of legalizing semi-automatic pistols…but they’re legal because the government doesn’t have a good reason to say no.

Meanwhile, child porn and fully-automatic weapons are banned, because there are completely valid reasons for the government to make them illegal.

(This is one of the reasons I detest Scalia, who actually argued the other way around, and tried to demand that if we wanted rights, we had to have them legislated into existence, rather than realize we do have those rights until the government specifically takes them away from us. The sad, sorry, son of a bitch was actually arguing, “Forbidden unless expressly permitted,” which goes against the tradition of liberty.)

[Revenant_Threshold]

@Trinopus

Isn’t the principle of maximizing liberty an interpretive idea that ought to be respected?

The press, or guns: either way, interpret it in the way that lets the people have the greatest access to what they want.

This follows from the idea that the government must have a good reason to ban anything, and that the default is always “permitted until banned.”

What if the case the judge is hearing brings up a “good reason”? Or, vice versa, a “good reason” does *not *exist in that case.

[Trinopus]

Well, it’s a vague principle … but so is originalism and contextualism.

I guess, in the ideal, if a good reason existed, it would have to be weighed, but it seems obvious that if there isn’t a good reason, then liberty would be given first priority.

This was somewhat weighed in the gay marriage case: the opponents could never actually give a reason for a ban. “One man, one woman” is a meaningless slogan. “It changes the definition of the word” is incredibly childish. Liberty was, in fact, maximized.

(I’m not, in fact, a libertarian, but it seems that a libertarian interpretation, in constitutional cases, is as valid as originalism or contextualism.)

(And I’m not even sure I’m spelling those words right, so don’t judge me too harshly. Besides, by the doctrine of originalism, I should be ƒpelling it Originaliƒm. )

[Happy_Fun_Ball]

@Bricker

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.

Not necessarily. Just because the first amendment didn’t mention radio when they enshrined freedom of the press doesn’t mean that radio newscasters are not “the press”. This is not an activist position. Similarly, now that we are transitioning to a paperless society with technologies like email and text message, it is not activist to conclude that the 4th amendment’s protection for people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures applies to these forms of communication. After all, the founders were concerned with dissemination of information for a knowledgeable electorate in the first case and the protection of communication and personal opinion in the second and just because the method has changed doesn’t mean the intention should. Otherwise the second amendment would only apply to muzzleloaders, right?

[Happy_Fun_Ball]

I guess I should read the full thread before I comment…

@k9bfriender

Are arms really that similar with 250 years of improvements?

You could fire one bullet at a time. You had to load it through the muzzle. It was not very accurate. Your bayonet was likely to be more useful in pitched battle than the gun itself. A halfway decent musket was also pretty expensive, pricing them out of reach of most people.

Could the founding fathers have possibly imagined a mass shooting? Could they have even imagined the prevalence and ease of use of guns today?

I would say that firearms have changed very much in character. Not saying that they should have no protection under the second, but it should be acknowledged that they were not thinking of anything remotely similar to the types of firepower we have at our fingertips.

So what? The press has changed very much in character, but I think it would be a bad idea to let the government regulate the dissemination of news over the internet because now they can reach millions of people without doing a single block set of type. Similarly, I don’t want the government to read my emails without a warrant because they are not “papers” nor control my Facebook posts because they are not technically speech.

Or as dba Fred put it:

@dba_Fred

Isn’t this the time in the discussion when somebody points out that the machinery and methods used by the press are pretty different in character from when the 1st Amendment was passed?
And I don’t have any stats but my loose guess would be that printing devices as a class of information dissemination were not as widely made, bought, or owned as modern printing devices. And TV, radio and the internet were methods not available to the press of that time.
So if we apply 1776 to guns do we also apply it to the press so we remain consistent?

Bingo.

Again, I should have read the thread before commenting.

All that said, it always seems to me that activist judges are labeled so by the group whose particular ox is being gored. Perhaps Bricker would be so kind to as to bring up several examples (from the left and right) of activist judges re-defining law.

[bump]

@Revenant_Threshold

What if the case the judge is hearing brings up a “good reason”? Or, vice versa, a “good reason” does *not *exist in that case.

Ideally that’s the stage when they hash it out and decide if the reason is good enough. Under **Trinopus’ ** liberty maximization principle, if the reason’s not good enough to prohibit something, then it’s merely not prohibited. It’s analogous to innocent until proven guilty in a lot of ways.

You see this somewhat frequently these days when drug laws are written too specifically, and someone comes up with a chemical that offers the same effect but outside the letter of the prohibition. It’s legal until the states/municipalities/Feds hastily include it in their laws. Read up on K2/Spice/synthetic marijuana for a good example.

And typically a “good reason” includes some reference back to prohibitions of similar things, or of other things for similar reasons. To suggest otherwise invites the specter of judges/courts writing laws rather than interpreting them, which is the purview of the legislative branch, not the judiciary.

That’s what I think a lot of the opposition to activist judges is; they’re essentially writing legislation from the bench, and that’s a serious encroachment on the separation of powers.

[Bricker]

@Revenant_Threshold

I think I too would strongly disagree with this notion; they seem pretty difficult in character to me. If they were not, would not muskets be as popular as modern firearms today? I have to admit, I don’t have any stats, but my loose guess would be that muskets as a class of weapon are not as widely made, bought, or owned as more modern guns today.

A Chevy Bel Air isn’t too popular today, but today’s Prius is also a car.

[Bricker]

@k9bfriender

Are arms really that similar with 250 years of improvements?

You could fire one bullet at a time. You had to load it through the muzzle. It was not very accurate. Your bayonet was likely to be more useful in pitched battle than the gun itself. A halfway decent musket was also pretty expensive, pricing them out of reach of most people.

Could the founding fathers have possibly imagined a mass shooting? Could they have even imagined the prevalence and ease of use of guns today?

I would say that firearms have changed very much in character. Not saying that they should have no protection under the second, but it should be acknowledged that they were not thinking of anything remotely similar to the types of firepower we have at our fingertips.

No, still not going to agree. Because arms were not new in 1789. The folks that approved the Second Amendment knew that matchlocks were once state of the art, and even before a matchlock, a live wick was used to fire the gun. They knew that the introduction of the matchlock dramatically improved the ability to aim and shoot. They knew that rifling, when it was introduced, dramatically improved the aim and range; that the wheel lock improved dramatically on the match lock, and the flint lock improved in turn on the wheel lock. They certainly understood that a matchlock was an “arm” within the meaning of their words, even though it was hopelessly archaic, and that the trend line that stretched into the past had no reason to suddenly go flat in 1789.

They certainly did, though, also understand that some future improvement in gun technology might make their words in the Second Amendment obsolete, and they covered that possibility in Article V.

[Bricker]

@Trinopus

Isn’t the principle of maximizing liberty an interpretive idea that ought to be respected?

The press, or guns: either way, interpret it in the way that lets the people have the greatest access to what they want.

This follows from the idea that the government must have a good reason to ban anything, and that the default is always “permitted until banned.”

The framers never thought of legalizing pornography…but it is legal, because the government doesn’t have a valid reason to ban it. The framers never thought of legalizing semi-automatic pistols…but they’re legal because the government doesn’t have a good reason to say no.

Meanwhile, child porn and fully-automatic weapons are banned, because there are completely valid reasons for the government to make them illegal.

(This is one of the reasons I detest Scalia, who actually argued the other way around, and tried to demand that if we wanted rights, we had to have them legislated into existence, rather than realize we do have those rights until the government specifically takes them away from us. The sad, sorry, son of a bitch was actually arguing, “Forbidden unless expressly permitted,” which goes against the tradition of liberty.)

Can you remind me where he did that?

[Bone]

@k9bfriender

Are arms really that similar with 250 years of improvements?

You could fire one bullet at a time. You had to load it through the muzzle. It was not very accurate. Your bayonet was likely to be more useful in pitched battle than the gun itself. A halfway decent musket was also pretty expensive, pricing them out of reach of most people.

Could the founding fathers have possibly imagined a mass shooting? Could they have even imagined the prevalence and ease of use of guns today?

I would say that firearms have changed very much in character. Not saying that they should have no protection under the second, but it should be acknowledged that they were not thinking of anything remotely similar to the types of firepower we have at our fingertips.

Repeating rifles existed as early as the early 1700’s. There was a school shooting involving over 10 killed as early as 1764. The idea that you could only fire one bullet at a time (ball actually) and had to load it through the muzzle isn’t correct. It’s true that these weapons were expensive, but so are many of today’s modern weapons. The framers of the constitution just fought in a war that involved many thousands dead - I think they understood the danger of weapons.