Redefining "activist judge" Posted by: McQ
on Wednesday, July 06, 2005
It would appear that an effort is afoot to redefine "activist judge" in the context of the upcoming Supreme Court nomination. Or at least that's my interpretation of this by Paul Gewirtz and Chad Golder in today's NY Times:
When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.
In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.
Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?
Striking down a law passed by congress constitutes "activism?"
Color me confused, but I thought that was their job if they saw the law to be in violation of the Constitution. Gewirtz and Golder continue:
Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.
There is a huge amount of context dropping going on here. In and of itself "a marked pattern of invalidating Congressional laws" means nothing unless the laws are examined against the Constitution as they're supposed to be. The number of times invalidation occurs may say more about the Congress at the time than the justice. So no, this does not at all seem like "one reasonable definition of judicial activism", especially without a careful examination of the laws in question. It is the job of the SCOTUS to invalidate legislation which fails the Constitutional test.
But it soon becomes evident that there's a method to their madness and its found here:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
How very convenient.
Note that in the beginning, the purpose was to remove the labels and to create a working definition of an activist judge. Now the labels are happily reapplied and activist and "conservative" become, basically, synonymous ... that is, if you accept the premise that overturning unconstitutional congressional legislation makes you an "activist judge".
Now, the group which brought you Kelo v. New London is considered to be non-activist in comparison with the group which vociferously voted against abandoning the 5th Amendment enumeration of the individual right to property and limited eminent domain to true "public use".
Do you buy that?
So what's the bottom line as concerns this very poor attempt to persuade us to accept the definition of a judicial activist which Gewirtz and Golder have cobbled together?
These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.
Said another way, the new "indicator" of an "activist judge" now includes, per these two, striking down unconstitutional legislation.
"Up is down, black is white, pay no attention to the man behind the curtain ... move along citizen, move along."
The NYT editorial crew seems to have confused "1984" with an operating manual. It’s almost as if they are reading it like it was subtitled "Propaganda for Dummies."
Any judge seeking to strike down a law as unconstitutional should have to, at a minimum, find two or three more judges to agree with him/her. The decision should then immediately go to the legislative body that enacted the law. If they repass the law by a supermajority, f**k the judges.
Interesting development here. The Times has a Yale Law School professor and a recent grad running an inteference screen-play. Notice how they take a core responsibility of the court as it has been understood throughout our nation’s history (testing existing statutes against constitutional interpretation) and redefine it as "activism"; knowing full well that those commonly employing the term "activism mean something else entirely. This would appear to be a deliberate attempt by the Times to confuse the public by redefining the terms of the debate through sheer dishonesty.
Note to Neal Boortz; remember THIS template. If it opposes the President then hammer it. Otherwise redefine it so nobody can argue pro or con.
Any judge seeking to strike down a law as unconstitutional should have to, at a minimum, find two or three more judges to agree with him/he.. If they repass the law by a supermajority, f**k the judges.
What in the world are you getting at Walter Wallis? By definition, the court has 9 judges and they have to have 5 to make a decision. What’s your point? That in addition to the 5 they need other judges?
Gewirtz: “Golder, you’re the math whiz and computer guy. Get out the spreadsheet and run all the decisions made by this court and see what patterns show up. Whatever we come up with for the Times crepe-hanger, we’ve got to have some hard-looking proof.”
Gewirtz: “I don’t like it. Kennedy is right up there.”
Golden: “It’s the best I can do. All the others are all over the place or else they show our guys in a bad light.”
Gewirtz: “Hmmm, well, we got ’bupkis’ else. Well, we can make Kennedy Left or Right depending on where we need him to be. Here, we make him Right. That works. What was the template for producing this list?”
Golden: “Lessee... it was: “Decisions which overturned legislation.”
Gweirtz: Cripes! We don’t get paid enough for this. What can we do with that?! That’s the JOB of the court, for chrissakes. This list makes just the opposite point of what we need.”
Golden: “Hold on. I know what you mean, but I was up all night on this and I think I have something. Just listen and see if you get my drift:
The word "activist" is used all the time, but it has never been defined. To conservatives it just means that the judge makes decisions with which they disagree. We’ve identified the ONLY objective and quantifiable real measure of a judge’s activism ever attempted by mortal man. Are you ready for this? ‘How often has each justice voted to strike down a law passed by Congress?’ Having discovered this irrefutable litmus test of activism, we used it to assess the records of the justices on the current Supreme Court. Boy, were we surprised! Then we throw in some statistics about past SCOTUS decisions about legislation – nobody can make a pattern there, remember how we tried that during the Schiavo deal? We can just use those. If we spin it right, our base will buy it. Then it becomes us against the Right Wing Noise Machine. What do you think?
Gewirtz: “I think it sucks, but we’ve got a deadline and we have nothing else. Clean it up and go with it.”
…that is, if you accept the premise that overturning unconstitutional congressional legislation makes you an "activist judge".
Tell that to the Right-Wing blowhards that persistently pound the proverbial drum.
From talk radio to elected representatives, all I hear from the Right is “activist judges”. They constantly like to tell us that it is the Left that “uses” the courts to further their agenda (as though these so-called leftist organizations have some sort of mind control over the judges). I hear the wingnuts telling the Left that they should further their agenda by using legislation through elected representatives, and that argument does have some merit. However, when the Right, or Left, favors laws that are already on the books that get overturned by a judge, a judge finding such laws unconstitutional, that judge typically receives the not so subtle sully of being an “activist judge”. From SCOTUS on down, judges do what they do (for better or worse), they judge. Gewirtz and Golder do have a point when they mention, “Often it simply means that the judge makes decisions with which the critic disagrees.” I don’t think that the Right or the Left would call a judge an “activist” when their rulings fall along respective ideological lines. Do you?
…Or at least that’s my interpretation of this by Paul Gewirtz and Chad Golder in today’s NY Times:
It’s that “media template” you keep trying to shove everything into, McQ. (Were you one of those kids that doggedly kept trying to put a square peg into a round hole???) ;-)
It seems to me that just because a particular judge overturns a law or previous decision doesn’t make that judge an “activist”. And reversely, a judge that does not overturn laws or decisions doesn’t make that judge an originalist. Bad laws are bad laws, injustices are injustices, and the courts are THERE for the minority just as much as they are there for the Constitution. No Libertarian could argue otherwise, for the views of the majority OFTEN conflict with the liberties of others.
When judges protect the liberties of a minority that the Right disagrees with, the Right gets their panties in a wad and the judges are labeled an “activists”. When judges ignore liberties violations on a minority (even when those liberties do not hinder the liberties of the majority) the Right hails them as “Constitutionalists”.
The intuitive inverse of their ranking is that the justices with the lowest scores (Souter,Stevens,Ginsburg, Breyer) sided with government against citizens.
The higher scores (Thomas, Kennedy, Scalia, Rehnquist) see the government and the court as having limited powers. Just like the founding fathers.
Too bad it completely misses the point of my post.
Someone who does their job, i.e. interprets law in ACCORDANCE with the context provided in the Constitution of the US is NOT an "activist judge" regardless of what these two nincompoops or you say.
I want judges who fit that description. A judge who does his job as laid out in the Constitution.
An activist, in terms of the judiciary, is one who uses their position to enact laws instead of interpreting them.
I don’t give a rip how the left or right feel about activism ... it has no place on the SCOTUS.
Hey Pogue ... enjoy your rant? Too bad it completely misses the point of my post.
Indeed I did, thanks. And I gotcher point. And agree with it.
A judge isn’t being an activist when he/she abides by the Constitution. My point, and it’s too bad you missed it, is that it has been the Right who has thrown around the “activist” aspersions to ad nauseam.
I don’t give a rip about these two nincompoops or their conclusions save “Often it simply means that the judge makes decisions with which the critic disagrees.” That, I do buy.
The Times has outdone themselves and Pogue’s comment is proof that they know their audience isn’t very bright. There is a really simple and objective definition of "activism." Activist judges, in the process of adjudicating a legal dispute, create laws that don’t previously exist. Pogue, take a look at Griswold v. Connecticut and make sure you get someone to help you with the big words like "penumbra." Then take a look at Roe v. Wade and you will see what activist judges do. Their activism has absolutely nothing to do with whether one group or another agrees with the Court’s decision. There and the cases listed above agree with the law or not.
The role of federal courts, as established in Marbury v. Madison in 1803, is to determine whether a law passed by Congress comports with the U.S. Constitution. These two knuckleheads who wrote the op-ed are obviously well aware of Marbury. Yet they are also obviously aware that idiots like Pogue don’t know anything about it and will buy into their distorted logic. I am always amused at how liberal elitists are so cynical about the ignorance of the liberal masses. Here you have two lawyers affiliated with Yale Law School making a public statement that contradicts legal precedent and the clear positions taken on hundreds of cases by opponents of judcial activism. Yet they are confident that no one will call them on their misdirection because they know that people like Pogue are ignorant. It reminds me of Florida 2000 when liberals in and out of the media paraded Palm Beach County senior citizens in front of the cameras to persuade the general public how clueless they were. The senior citizens didn’t seem to mind being cast as a bunch of simpletons who couldn’t figure out the butterfly ballot as long as it would help Gore win. This op-ed piece is just an extension of the contempt with which liberal elitists view the general public. Pogue, if you were smarter you’d be offended.
What comment of mine did you read? (you see, this is where the Right gets their panties in a wad.) Liberal Elitist… Activist Judges… Ivy League Academics…., yea, yea, yea. Been reading the Rush Limbaugh talking points of the day toilet paper, have we?
I’m not going to argue the validity of the Court’s interpretation of the Constitution; I’ll leave that to the legal scholars. (uh oh, “scholars”… that must be a Liberal Elitist’s denigration of the heartland!! Wing-nuts beware.)
My point was clear. The Right commonly uses the term “activist judges” when the rulings, the interpretations, differ from the conservative ideology that they swallow, and want us to swallow as well. jt007, if you were smarter, you would have seen that.
I believe the Constitution should be a living document. And I have precedent to back me up. Amendments come and go, interpretations of the Constitution are applied differently to an ever changing society, and it should be the duty of the courts to protect the liberties of the minority, as long as it doesn’t infringe on the liberties of the majority.
If you believe a ruling in 1803, one that says the Court can only decide whether something is unconstitutional, as a reason the Court shouldn’t protect the liberties of the minority, then I can’t help you. You do realize, though, that contemporary culture and technological advances demand a more copious interpretation in our modern times?
If a judge interprets the Constitution differently than how you would,… tough. I guess you can call them stupid or ignorant; you seem to be good at it. (funny, I thought calling people stupid and ignorant was something the Liberal Elitist Academia does.)
Actually I can’t think of anyone who hasn’t given the "judicial activism" charge. Time to dead it:
Loudmouth interest groups define "judicial activism" as being whatever they do not agree with. Republicans do it, Democrats do it. In all honesty, if the proper meaning of the term were applied then every judge that most of either side would approve of would be an "activist", and the type of judges that actually stuck to their proper role wouldn’t stand a chance in hell of being nominated, let alone confirmed, as to allow them that power would be to finally make an attempt at limiting the power of government again.
As for Pogue:
I believe the Constitution should be a living document. And I have precedent to back me up. Amendments come and go
In the entire history of the US since the Constitutional Convention itself, twenty-seven amendments have actually passed the entire process. Twenty-seven. Many have been proposed, very few have actually passed.
...it should be the duty of the courts to protect the liberties of the minority, as long as it doesn’t infringe on the liberties of the majority.
If the courts, along with the rest of the government, were to follow the Constitution for once, there’d be no need to weigh the liberties of the majority against the minority or vice versa, because the point would be to protect the liberties of the individual. Once we think of it as group conflict, we’ve failed already.
What comment of mine did you read? (you see, this is where the Right gets their panties in a wad.) Liberal Elitist… Activist Judges… Ivy League Academics…., yea, yea, yea. Been reading the Rush Limbaugh talking points of the day toilet paper, have we?
Wow, that’s impressive. Pogue comes right out of the gate accusing jt007 of reciting talking points and in the same sentence makes a stock, non-sequitur Rush Limbaugh reference. The only point made by that statement was the complete lack of self awareness of its author.
My point was clear. The Right commonly uses the term “activist judges” when the rulings, the interpretations, differ from the conservative ideology that they swallow, and want us to swallow as well. jt007, if you were smarter, you would have seen that
No Pogue, the "Right" uses the term "activist judges" to describe what William Douglas did in Griswold, Harry Blackmun did in Roe and Stevens did in Kelo. You see, according to these wise men the Fourth Amendment’s protection against unreasonable searches and seizures actually means that there is a penumbra of privacy which pertains to birth control pills. The penumbra of privacy arising out of protection from unreasonable searches and seizures actually means that a person has an inviolable right to obtain an abortion in a public medical clinic from health care professionals educated at medical schools that receive public money (even Lawrence Tribe has criticized the Roe decision on this basis). The term "Public Use" actually means private, for profit, real estate development. See, those are examples of liberal judges making things up. I happen to generally agree with the results of the first two decisions, I just disagree with the means used to achieve them. All of these results should have been achieved (or not) through the democratic process and that’s all critics of "activist" judges are demanding. Saying that everybody equally misuses the term to suit their purposes is nonsense.
If you believe a ruling in 1803, one that says the Court can only decide whether something is unconstitutional, as a reason the Court shouldn’t protect the liberties of the minority, then I can’t help you.
This is a brilliant argument. If a ruling is too old it is no longer valid. Pogue, how old can a law be before it becomes invalid? By your logic the First Amendment should be invalid because it was proposed/passed in 1789-90 which makes it older than Marbury. By Pogue’s illogic the prohibitions against Congress making law establishing a religion and freedom of the press should no longer be enforced because they are too old. Tell that to Judith Miller because she just went to jail to protect that freedom. Protection of minority rights has nothing to do with "judicial activism." That’s just a rationalization used by the acitivists. Neither Griswold nor Roe nor Kelo have anything to do with minority rights. Those rulings are merely laws and/or amendments to laws that the majority of the Supreme Court wished to enact. Isn’t the pro-choice position the majority position in this country? Chuck Schumer seems to believe that. How does Roe protect minority rights when the majority of Americans apparently agree with its ruling? When Roe was handed down in 1973, abortion was legal in 38 states.
I believe the Constitution should be a living document. And I have precedent to back me up. Amendments come and go, interpretations of the Constitution are applied differently to an ever changing society....
Pogue, you are a knucklehead. The concept of a "Living Constitution" doesn’t have anything to do with amending the Constitution. When Thurgood Marshall spoke about the "Living Constitution" he maintained that the meaning of its terms as-is, without the need for amendment, should be fluid in order to adapt to changing times. The amendment process, on the other hand, is an entirely legislative process and is at the heart of our democracy. Amending the Constitution doesn’t have anything to do with the issue of "judicial activism" because the amendment process occurs entirely outside the court system. Judicial activism is needed by the left precisely because they can’t get most of their public policies enacted via the democratic process. The only point this statement made is that jt007 was correct about your intellect.
You do realize, though, that contemporary culture and technological advances demand a more copious interpretation in our modern times?
"Copius interpretation"? You should take a look at a dictionary before you use big words that you don’t know the meaning of. "Copius" means abundant or plentiful. Critics of judicial activism just don’t want judges creating new laws. Looks like another unwitting confirmation of jt007’s point.
If a judge interprets the Constitution differently than how you would,… tough. I guess you can call them stupid or ignorant; you seem to be good at it.
Jt007 didn’t say that the court was "stupid or ignorant" he said that elitists like the authors of the op-ed piece were banking on the ignorance of the Times’ readership. Anyway, critics of judicial activism aren’t concerned with instances of interpretation, they are concerned with judges making things up. In Kelo, Stevens "interpreted" the word "public" to mean "private". Those two words have distinct meanings, however, so this wasn’t an interpretation of a Constitutional term. Stevens’s ruling is an example of the court expanding the powers of government beyond the clear limits established by the U.S. Constitution. Critics of judicial activism merely want to adhere to the democratic process, which in that case, would have required an amendment to the Constitution. Otherwise, the developer had the right to negotiate a price with the seller that would have induced her to sell her property volitionally. Obviously that price would have been higher than the amount he will actually pay with the power of the government behind him.
Another case that disproves Pogue’s claim about "interpretation" is the Raich case. In Raich, the court upheld the federal government’s prohibition against the private use of marijuana for medicinal purposes based upon the commerce clause of the U.S. Constitution. The defendant in that case grew the marijuana on her private property and consumed it entirely by herself on her private property after obtaining a prescription from a licensed MD in accordance with state law. The court didn’t "interpret" the meaning of "interstate commerce", it decided to apply it a situation that had absolutely nothing to do with interstate commerce. Raich’s personal consumption of her personal stash was entirely outside of any commerce between California and any other state yet Stevens ruled that it was part of "’a class of economic activities’ that have a substantial effect on interstate activities" Raich is actually a case that substantiates the inconsistency of the political left. They love it when the court relies upon the interstate commerce clause to expand the federal government’s except when it interferes with smoking their reefer. Where’s the penumbra when you need it?
(funny, I thought calling people stupid and ignorant was something the Liberal Elitist Academia does.)
Jt007 said that elitist liberals think that the liberal masses are stupid. You are the only person that he claimed was ignorant and I don’t see how you can fault him for calling a spade a spade.
Anonymous - THANKS - you did what I was preparing do, and did it better than I would have been able to do. Well done.
Pogue? Just DAMN!!! How can you be so wrong yet so verbose? When I got done reading your rants, all I could think of was Zell Miller at the RNC "... more wrong, more often..."
