Are activist judges just the ones you don't agree with?

Billnew · Sep 1, 2004

activist judges are the judges that use the weakest arguement to change a law.
They legislate from the bench.

A judge is one that interprets the law and enforces it. Judges do not make laws.
To allow or disallow a law with sufficient justification.

To say marriage licences were legal for 2 people of the same gender when the States constitution specifies differently is legislating from the bench. They may not overrule the constitution. They can ask for clarification but not change it.

There are other rulings, but this is the last one I remember.

MKalashnikov · Sep 1, 2004

Judicial activism The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.

-----------------------------------------

Now that we have the term defined, let's see what the Founders said about Activist Judges:

Article. I.
Section 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The founders never intended for Federal Judges to act as social dictators over the individual states. They were NEVER PERMITTED TO MAKE LAW, they were only permitted to INTERPRET LAW.

The Constitutional Convention in 1787 did give thought to the issue of Judicial Activism. The delegates considered a proposal for what they called a Council of Revision that would have allowed federal judges to weigh in on bills before they were signed into law. James Wilson of Pennsylvania (Who wanted Judges to be involved in making law) pointed out that "laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."

The idea was voted down twice and never seen again.

Nathaniel Gorham of Massachusetts said: "Judges are not to be presumed to possess any peculiar knowledge of the mere policy of public measures."

John Dickinson of Delaware said: "The Judges must interpret the laws, they must not be legislators."

Other writings of the Founders further demonstrated this point.

Alexander Hamilton in Federalist 78 said: "The Judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will. "

Alexander Hamliton in Federalist 81: "[T]here is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

Hamilton further stated, that the reason that the courts were not to construe the laws"according to the spirit of the Constitution"was that this would "enable the court to mold the laws into whatever shape it may think proper which is as unprecedented as it was dangerous."

James Kent similarly explained that the Judiciary could only compare a law to "the true intent and meaning of the Constitution."

James Madison said: "[R]efusing or not refusing to execute a law, to stamp it with its final character makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper."

Luther Martin:"A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature."

James Madison: "But the great objection drawn from the source to which the last arguments would lead us is that the Legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the Judiciary. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments. Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority."

John Randolph: "The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people [the Congress] or to those who are irresponsible [the judges]? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion which can and will check their aberrations from duty?"

Thomas Jefferson: "[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question."

Luther Martin: "It is necessary that the supreme Judiciary should have the confidence of the people. This will soon be lost if they are employed in the task of remonstrating against [opposing and striking down] popular measures of the Legislature. "

Thomas Jefferson stated: "[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

Jefferson stated in a letter to Judge Spencer Roane: "You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal."

Now, the Founders did establish a system for changing the Constitution:

"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed." George Washington

Paula · Sep 1, 2004

burrow_owl said:
This is the problem with conservatives at the moment: there's a good idea in there, but conservatives don't have the institutional infrastructure to encourage the kind of critical thinking to articulate the latent good idea. More specifically, there is a difference between 'activist judges that make law' and judges that apply law, but it isn't an historical anomaly (judges have always made law - I don't know why conservatives hate America so much, which was founded on the Common Law tradition in which judges took on a legislative role - if you want judges to just apply law, go back to France). The conservatives' problem is that they just apply empty slogans without understanding what that means, and the historical circumstances that make it problematic.

Hint to platitudinous repubs: SDP. . . .

Hey, "B.O.",

Rather than waste my time trying to explain the numerous non sequiturs and factual misstatements contained in your post, this came to mind instantaneously:

'Twas brillig, and the slithy toves
Did gyre and gimble in the wabe;
All mimsy were the borogoves,
And the mome raths outgrabe.

"Beware the Jabberwock, my son!
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!":

(Lewis Carroll, 1872)

So typical of "liberal" thinking!

burrow_owl said:
Hey, a few Coronas and a (pfft...) heavy-hitting lineup of intellectuals (see generally: T2; oatmeal raisin cookies; page 6 rumours excluded out of tact) will do that.

I rest my case!

burrow_owl · Sep 1, 2004

Paula said:
I rest my case!

Heh. Touche!

Funnily enough, I've used that Lewis Carrol poem in a few papers in exactly the same way you just did! (it was famously used by a Natural Rights theorist as against HLA Hart's formalism).

Dittomonkey: what do you think of Scalia's decision in last year's Washington, in which he invalidates the hearsay exception for interlocking confessions (you're a police officer or detective, right? Since you obviously know Constitutional law, and this case coincides with your profession, I assume you know the case - if you don't, it was a biggie, and a capsule summary shouldn't be hard to find)?

I haven't read anything in the Constitution about 'interlocking confessions', so what's going on? How is it that Scalia's decision doesn't represent an expansion of the text which de facto creates a new right? (holding off on my own positive theory to winnow distractions)

Borealis · Sep 1, 2004

dittomonkey911 said:
Judicial activism The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.

You must spread some Reputation around before giving it to dittomonkey911 again.

Very nice post.

kermit · Sep 1, 2004

Billnew said:
activist judges are the judges that use the weakest arguement to change a law.
They legislate from the bench.

A judge is one that interprets the law and enforces it. Judges do not make laws.
To allow or disallow a law with sufficient justification.

To say marriage licences were legal for 2 people of the same gender when the States constitution specifies differently is legislating from the bench. They may not overrule the constitution. They can ask for clarification but not change it.

There are other rulings, but this is the last one I remember.

The Supreme Court of the US or a state does indeed have the authority to create laws. By interpreting the Constitution (US or state) they are creating law. The SP does not merely interpret the Constitution they define it. In a way it's like Papal infallability; we all are forced to accept their interpretation. If we do not then anarchy will ensue.

burrow_owl · Sep 1, 2004

By interpreting the Constitution (US or state) they are creating law. The SP does not merely interpret the Constitution they define it.

That's the interesting question. We have all these laws (boxes) and all these specific instances (balls). Adjudication is a process of constantly fitting new balls into old boxes and figuring out which boxes the balls go in (often, it just isn't so clear). The upshot is that it may look like we're announcing new rights, when it's just a ball we haven't seen before, or presumed incorrectly that ball didn't fit in the box.

Loving is the prime example. The 14th Amendment means that all should be treated equally by law based on relevant characteristics. In Loving, the court said that anti-miscegenation statutes violate this. So it'd be easy to say that the court 'made new law', since, if you squint a bit, it looks like, all of a sudden, there's this new legal right to marry someone of another race. It's not a legal right, though; the statute violated the Equal Protection Clause of the 14th Amendment. In practice, though, it sure looks like a new right. So there's this practical elision of the border between announcing rights and clarifying law.

And thus ends my worst post ever. Thank you very much, you've been a great crowd.

HumbleMan · Sep 1, 2004

I can't understand what people mean when they say judges create law from the bench. They can't do that. They can say that a law is unconstitutional, and block it's enforcement. But creating law? I don't know.

burrow_owl · Sep 1, 2004

HumbleMan said:
They can say that a law is unconstitutional, and block it's enforcement. But creating law? I don't know.

Because I'm nitpicky, I gotta point out that state judges can and, in some circumstances, have to make law (if the statutory law doesn't cover the case, the judge is making law, no matter his decision - he either says 'yes' or 'no' - both define the scope of our rights and duties, and stare decisis, which posits that past decisions have to be followed in the future, solidify the decision as 'law'). It's just federal judges that aren't supposed to 'make' law (which hasn't been delimited just yet).

praying · Sep 1, 2004

So let me ask my question again since activist judges became the conservative catch phrase of the day after the MA ruling, was the MA ruling a case of creating new law or ruling on the MA constitution?

burrow_owl · Sep 1, 2004

Mhatten said:
So let me ask my question again since activist judges became the conservative catch phrase of the day after the MA ruling, was the MA ruling a case of creating new law or ruling on the MA constitution?

My take on it: they were simply applying heightened gender scrutiny per their own constitution ('the law shall not discriminate based on gender' or some variant thereof). They also engaged in some 'judicial activism' (quotes indicating that the term is provisional: we haven't really demarcated what 'making law' means) by ex nihilo stating that marriage is a right (well, it's not quite clear they did, but that's the rough and ready version). However, even if we take the 'gay marriage is a right' bit out, they would've come to the same decision through equal protection.

jayem · Sep 1, 2004

burrow_owl said:
My take on it: they were simply applying heightened gender scrutiny per their own constitution ('the law shall not discriminate based on gender' or some variant thereof). They also engaged in some 'judicial activism' (quotes indicating that the term is provisional: we haven't really demarcated what 'making law' means) by ex nihilo stating that marriage is a right (well, it's not quite clear they did, but that's the rough and ready version). However, even if we take the 'gay marriage is a right' bit out, they would've come to the same decision through equal protection.

I'm not a lawyer, but I would definitely agree with you. I think a lot of what is called "judicial activtism" is really using a strict scrutiny standard to judge the constitutionality of various laws, particularly, those regarding personal or private behavior. If I'm not mistaken, under strict scrutiny, a law which would prohibit something, is presumed to be unconstitutional unless it can be shown to have a compelling state interest. It seems to me that there has been a definite "anti-statist" trend, at least in the federal courts over the last 75-80 years or so. And by that, I mean that decisions have favored the privacy rights of individuals, over the police powers of states. But in the later 19th and early 20th centuries, the courts tended to favor property rights. At one time, laws limiting work hours were declared unconstitutional because they were felt to interfere with the right of employers to freely negotiate work conditions with employees. And, at the time, this was felt to be "judicial obstructionism" of progressive legislation. Attitudes and values do change over time. We're just in a particular trend.

burrow_owl · Sep 2, 2004

*bump*

datan · Sep 2, 2004

possibly

the_malevolent_milk_man · Sep 2, 2004

Often times there are conflicting sources for which to interpret the law from.

Do you look to the constitution which says that people should have equal protection regardless of the circumstances?

Do you look to cases of precedence even though those cases may have ignored constitutional protections?

Do you look to local law which is based as much on custom as constitutionality?

The "activist" judges who have ruled in favor of gay rights are most likely basing their judgement on equal protection for all which is actually preserving the first and most basic freedom in the bill of rights, if anything they're conservative and not activists.

Brimshack · Sep 2, 2004

Either a judgement is soundly based on the Constitution, relevant precedents, etc. or it is not. If a judgement is not based on a proper interpretation of the Constitution, then this can and should be shown without recourse to ad hominems against the judge. If the judgement is sound, the calling the judge an activist is a very good way of distracting people from the legal reasoning of the case. And therein lies the problem, recourse to this label has enabled many to brow-beat judges for decisions to which they are politically opposed while pretending they are really upset about the judges inattention to the Constitution. It's a very simple and very dishonest ploy.

praying · Sep 2, 2004

jayem said:
I'm not a lawyer, but I would definitely agree with you. I think a lot of what is called "judicial activtism" is really using a strict scrutiny standard to judge the constitutionality of various laws, particularly, those regarding personal or private behavior.

I am not a lawyer either and in lay terms I still think it just sour grapes. The public crying foul when the ruling doesn't go the way they want it to.

Paula · Sep 2, 2004

First, I think the terms "activist judge" and "judicial activism" are very valid concepts and should not be disregarded as mere "sour grapes." So doing results in a gross oversimplification, most likely due to inadequate understanding of the subject matter. For decades, liberals and conservatives alike have accused one another of judicial activism, giving rise to the controversial theory that judicial elections as opposed to appointments should become de rigeur, among other things. But that's another matter for anothr day.

It can readily be seen that the spirit of the times (and/or needs of the nation) can legitimately influence and become superimposed upon judicial decisions, particularly those of the Supreme Court. Combined with choice of law factors inherent in many court rulings, one can easily see why and how the picture has become even further complicated. Yet, all of these factors have given rise to legitimate concerns.

Secondly, although I don't want to digress too much on the subject of same-sex marriage--particularly in light of the unusually high number of threads on the topic--I'm afraid the constitutionality of this issue isn't quite as clear-cut as some perceive it to be.

As I've consistently explained in the past on other threads, a majority of state Supreme Courts across the country have reacted to the Mass. S.Ct. decision by rightfully upholding existing bans on gay marriages. A good example of this is the Ariz. Supreme Court's decision to uphold the Appeals Court's unanimous ruling which, upon examination, reveals no 14th Amendment violations whatsoever and concludes same-sex marriage not to be a fundamental right. (See Standhardt v. Arizona, 5/25/04). This is an excellent decision to read (see link below).

The Ariz. high court cites Chief Justice Warren's opinion in Loving v. Virginia as a reason not to grant same-sex marriage, as that opinion is restrictive to interracial couples of opposite sex, not same-sex. Based on Loving, the Ariz. ruling further holds that (1) "....the state has a rational basis for prohibiting same-sex marriage because of goals related to procreation and child-rearing;" and (2) Lawrence v. Texas does not establish any fundamental right to same-sex marriage.

In conclusion, in contrast with the Mass. high court's liberal interpretation of constitutional law, many other state courts have shown judicial restraint in their interpretation of legal precedent which essentially has served to cut the other way, resulting in enforcement of same-sex marriage bans.

(1) http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf
(2) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html

praying · Sep 2, 2004

Paula said:
First, I think the terms "activist judge" and "judicial activism" are very valid concepts and should not be disregarded as mere "sour grapes." So doing results in a gross oversimplification, most likely due to inadequate understanding of the subject matter. For decades, liberals and conservatives alike have accused one another of judicial activism, giving rise to the controversial theory that judicial elections as opposed to appointments should become de rigeur, among other things. But that's another matter for anothr day.

It can readily be seen that the spirit of the times (and/or needs of the nation) can legitimately influence and become superimposed upon judicial decisions, particularly those of the Supreme Court. Combined with choice of law factors inherent in many court rulings, one can easily see why and how the picture has become even further complicated. Yet, all of these factors have given rise to legitimate concerns.

Secondly, although I don't want to digress too much on the subject of same-sex marriage--particularly in light of the unusually high number of threads on the topic--I'm afraid the constitutionality of this issue isn't quite as clear-cut as some perceive it to be.

As I've consistently explained in the past on other threads, a majority of state Supreme Courts across the country have reacted to the Mass. S.Ct. decision by rightfully upholding existing bans on gay marriages. A good example of this is the Ariz. Supreme Court's decision to uphold the Appeals Court's unanimous ruling which, upon examination, reveals no 14th Amendment violations whatsoever and concludes same-sex marriage not to be a fundamental right. (See Standhardt v. Arizona, 5/25/04). This is an excellent decision to read (see link below).

The Ariz. high court cites Chief Justice Warren's opinion in Loving v. Virginia as a reason not to grant same-sex marriage, as that opinion is restrictive to interracial couples of opposite sex, not same-sex. Based on Loving, the Ariz. ruling further holds that (1) "....the state has a rational basis for prohibiting same-sex marriage because of goals related to procreation and child-rearing;" and (2) Lawrence v. Texas does not establish any fundamental right to same-sex marriage.

In conclusion, in contrast with the Mass. high court's liberal interpretation of constitutional law, many other state courts have shown judicial restraint in their interpretation of legal precedent which essentially has served to cut the other way, resulting in enforcement of same-sex marriage bans.

(1) http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf
(2) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html

don't misunderstand my postion while I do think the majority of people crying "activist judges" is sour grapes that does not mean I think that the concept is non-existant.

I would be interested to know of all the various controversial major decisions how many have been said to be activist judges in action?

burrow_owl · Sep 2, 2004

First, I think the terms "activist judge" and "judicial activism" are very valid concepts and should not be disregarded as mere "sour grapes." So doing results in a gross oversimplification, most likely due to inadequate understanding of the subject matter.

This is an excellent point, and I think it really highlights the problem: people tend to throw the words 'judicial activism' around without explaining what it means, how we are to identify it, etc. This leads to the inference that 'judicial activism' has become a persuasive definition, with no descriptive content. In other words, analytically it looks like an empty cipher that is merely a vessel for normative disapproval.

In conclusion, in contrast with the Mass. high court's liberal interpretation of constitutional law, many other state courts have shown judicial restraint in their interpretation of legal precedent which essentially has served to cut the other way, resulting in enforcement of same-sex marriage bans.

It's certainly political restraint, or, more accurately, political conservatism, which is frequently invoked as an institutional value that is or should be embraced by courts. Interestingly, this principle is most frequently invoked by conservatives; the upshot of it, though, is that this belief champions allowing extralegal political/institutional concerns to override or impact legal reasoning. Regardless, it remains to be seen whether these cases are examples of judicial restraint, poor reasoning, or good reasoning responding to the differences in law between the states.

Are activist judges just the ones you don't agree with?

Legend

No longer a member of CF. As per Romans 12:9

Veteran

Senior Contributor

Catholic Homeschool Dad

Legend

Senior Contributor

Ragamuffin

Senior Contributor

Snazzy Title Goes Here

Senior Contributor

Naturalist

Senior Contributor

Well-Known Member

Well-Known Member

Well-Known Member

Snazzy Title Goes Here

Veteran

Snazzy Title Goes Here

Senior Contributor

Similar threads