Activist Judges

[Sachem]

I'm a liberal Democrat and aware that conservatives oppose "activist judges legislating from the bench." I'm not clear what that means or even if it's the best terminology and would like conservatives to explain their concerns so I can understand them. Examples, principles and philosophical underpinnings would be helpful. References to the Constitution and amendments as well as specific cases would be helpful.

I understand this is a privately owned board and among its purposes is to provide a place for conservatives to talk with conservatives and that its operators can place any restrictions on posters they like. I'm not a "rat troll" or a disruptor. I'd like to understand the conservative point of view on judicial activism.

In addition to the general request for information on activism from the bench, above, I would like to know:

1. If I disagree with any of the viewpoints can I discuss, debate or argue if I'm civil?

2. Apparently conservatives object to liberal judicial activism. Is there such a thing as conservative judicial activism?

3. How would decisions be different with conservative judges on the bench?

4. What decisions would conservative judges or justices roll back - overturn?

[gcruse]

Welcome to FR.
This should be a good thread.
Civility is the key. If you can
maintain that, the ideologues
will kill you. LOL

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[TomServo]

Welcome - thanks for thr future fun thread.

[egarvue]

Welcome to Free Republic. I must say that you're off to a great start; its not often that we get to hear the "other side" speak with intelligence and civility (and I'm afraid our side has problems with being decent at times, too). I'm no expert on the chosen topic, but I'd say that as long as discussion is civil, have at it.

[LanPB01]

Judicial activism is when the judicial branch of government excedes their authority. In simplest terms, the judicial branch is designed to make sure the laws passed by the legislative branch (congress) meets the standards established by the constitution. For example, take the recent affirmative action case. The constitution specifically prohibits discrimation, end of story. It shouldn't even be open for debate; it's a slam dunk. However, liberal judges have chosen to "legislate from the bench" and completely ignore the document upon which the United States government is founded.

You'll find people that disagree about the "right to privacy" that seems to have been created in Roe vs. Wade, but at least some semblance of a legal argument can be made regarding privacy. NOTHING can justify the discrimination in affirmative action policies.

[BCrago66]

It seems you want to debate while evading the responsiblily of staking out or revealing your own position. Why don't you tell us what YOU think, and why?
That's how most people argue. We normally don't present lists of questions to others as if we were making a discovery request or an interogatory in a civil lawsuit.

[deport]

Just curious......

Do you consider such a thing as 'judicial activism' to be available, prevelant, or doable whether by conservatives or liberals?

[LanPB01]

In my opinion, there can be conservative judicial activism, especially in regards to religious topics. I don't have any cases to cite from memory, but I saw plenty in law school.

[KineticKitty]

If your honest in your statement, Welcome to FreeRepublic.

[j.havenfarm]

I'' take the first go 'round on this. The classic example of judicial activism is the "right to privacy," starting in Griswold v. Connecticut and finding full flower in Roe v. Wade. We are advised by the Supreme Court worthies that the right to privacy "emanates from the penumbras" of the Constitution. The metaphor refers to the flares of light that emanate from the edge of the sun at full eclipse. What it really means is that the justices made it up to justify their predetermined result. The evil in this is that it short circuits the democratic process. Contraception and abortion were traditional proper areas of STATE regulation. If it were 1972, and you wanted abortion legal in your state, then you should have been required to mobilize public support, enlist legislators or put a referendum on the ballot, etc. Thus, through the democratic process, the will of the majority of the people would determine the policy and the law for that state. Maybe some states would have legalized aboriton, and others kept it criminal. In a federal system, that's just the way it goes, but courts minting new-found "rights" out of whole cloth is unfair and undemocratic. By the time Roe came down, abortion was already legal here in California. I'm not saying the issue would have been completely resolved in every state by now, but I'll bet that in many states there would be peace on this issue, instead of thirty years of nationwide rancor and discord that has reuslted from the Supreme Court's usurpation of state control of this issue. If one is a fair minded person, one should be able to acknowledge that in a democratic society one should play by the rules. If you can win that way, great. If not... too bad. It is monumentally unjust to have unelected judges gaming the system, and making law from the bench.

[egarvue]

Being no expert, I would say that the major judicial difference between liberals and conservatives is in how each construes the Constitution - "living document" vs. narrow construction. IMHO, the liberal, "living document" view leads to "activist" judges, in that because they view the Constitution as a morphable, changable set of laws, they feel they interpret the Constitution as widely as possible. The Constitution may be changed; the founding fathers provided a mechanism for that (amendment). But what many liberal judges do is invent "rights" that are not enumerated specifically in the constitution, thereby altering the document and bypassing the constitutional mechanism for change.

[LanPB01]

The basic reason conservatives oppose judicial activism is that it, if judges are allowed to make up laws from the bench as they go along, they become a super legislature, and the system of checks and balances fails. In theory, if congress passes a bunch of ridiculous laws, the voters can vote them out, and the judicial branch can overturn any legislation they pass that doesn't meet constitutional muster.

This kind of checking is not available for judges, especially those that are appointed for life.

[Budge]

Welcome, Sachem.
Just keep your responses civil, clean and respectful. You may learn something from us, and by the same token, we may learn something from you.

My suggestion is to read 'The Constitution Of The United States Of America.'

It will explain the exact duties of each branch of government. What each can and cannot do.

[Sachem]

Okay, sure, but I know my opinions and would really like to hear those of conservatives.

My opinion is that the Constitution is often deliberately vague and requires interpretation. The Bill of Rights is full of such necessities. Judges have to figure out what was meant, and I want them to do so in as unrestricted way as possible - see below.

I have an even more important belief, that our rights do not derive from the government, so we need not look for a short and incomplete list of them in the Constitution, rather they derive from our existence as persons and citizens and are extremely broad. In other words, I think we are truly free to think and do as we please, unless we infringe the equal rights of another.

It is no surprise to me that people go to the courts to assert liberties when they believe a government has infringed them. That judges recognize individual's rights and set a high bar for government to remove or restrict them is as it should be. BTW, that also seems like what conservatives should want, unless we use the same phrases but mean different things.

Better?

[BCrago66]

Of course there can be Conservative judicial activism. I think Bush v. Gore is justified by the reasoning of the Renquist-Scalia-Thomas concurrance, but if you forgot about that and just considered the opinion of the court - which expanded the scope of the Equal Protection clause - then that decision would be considered judicial activism.
(Although it has some precedent in prior liberal "one man one vote" cases - See Baker v. Carr)

Another example of Conservative judicial activism is a decision from this last term in effect holding that state court punative damages out of proportion to compensatory damages violate substantive due process. The is reading values into the Due Process Clause not found in the Constitution, in the same manner that liberals read the right to Privacy into the Due Process Clause.

Another example...early this century, the "Lochner" series of cases that struck a great deal of economic regulation on the ground of substantive due process.

[VRWCmember]

2. Apparently conservatives object to liberal judicial activism. Is there such a thing as conservative judicial activism?

Such a thing is theoretically possible, but the conservative position is to rely on the law as stated, making judicial activism unlikely.

For example: Liberals opposed to Priscilla Owens label her a "judicial activist" because she ruled that the Texas law requiring parental notification for abortions for minors was constitutional. She ruled that the law meant exactly what it said it meant and she refused to make up some provision out of thin air to find the law unconstitutional. This is not judicial activism but is rather strict constructionism.

[LanPB01]

Your belief that we should be able to do things without infringing upon the rights of others sounds like conservative thought to me, and depending on how far you take this belief, you might even qualify as a libertarian.

[Sachem]

Perhaps, but most of what I think conservatives regard as judicial activism I would see as judges making decisions in favor of individual assertions of freedom.

More to the point, I don't see why if there is such a thing as judicial activism that both ends of the spectrum couldn't or wouldn't practice it.

[Restorer]

Is there such a thing as conservative judicial activism?

Depends what you mean by the term. Which requires you to define both conservative and activism.

In my opinion, real conservativism in America sticks to the principles and wording of the written constitution. However, that document is itself a remarkably radical document. Thus racial equality is specifically a part of it, so the Brown decision was not judicial activism, although some of the decisions later implementing it certainly were. While Roe v. Wade cannot be extrapolated from the Constitution in any logical way.

I'm sure liberals would consider a return to the original meaning of the Constitution as judicial activism, whereas I would consider it only correcting the activism of the last 40-50 years.

As the least democratic of all the branches of government, the judicial branch should have the least power to directly affect the lives of individual Americans. Yet in our present system it has the most. This is wrong.

The Consititution gives Congress almost absolute power over the Courts, of course, by restricting their scope. But Congress is frequently thrilled to pass the buck to the Supremes on controversial issues, so they haven't used this power in over 100 years.