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?

[BCrago66]

"Appeals courts are democratic"

I don't think that's a serious comment. Democracy does not mean taking a vote - or else its democratic when most of you neighbors decide to kill you, and its democratic when most of the the various dictatorships that make up the UN decide that America may not take military action.

We're talking about a very specific meaning of "democracy," in terms of the "social contract" between the government and the American people. The Constitution is the original contract because it was crafted by the representatives of the people and ratified by the people of each state. Within that system, democrac ymeans that "we the people" - via our elected representaitves - write our laws.

Democracy does not mean that unelected judges write our laws for us.

[The Hon. Galahad Threepwood]

An "activist judge" is one who enacts his personal policy preferences into law.

For example, the Constitution contains no provision which forbids states from criminalizing sodomy. It is a public-policy question properly left to the legislatures of the states.

The Supreme Court struck down Texas's law against sodomy simply because a majority of justices did not like the law, not because there was any Constitutional warrant for doing so.

Another, even more egregious, example comes from Nevada, where the state Supreme Court simply overruled a provision of the Nevada Constitution which requires a 2/3 majority of the legislature to approve a tax increase, because the legislature hadn't yet approved a budget, and six of the seven justices thought that education funding was more important than the plain language of the state Constitution.

A good way to tell if a court is being activist is if they suddenly discover a Constitutional principle which no one ever noticed before (e.g., the "right to [sexual] privacy," which was "discovered" only in 1965 and has been regularly extended ever since), or if they cannot quote a specific provision of the Constitution in support of their decision (e.g., Roe v. Wade).

Conservative judicial activism does exist, though I can't think of any examples at the moment. Anytime a judge rules so as to achieve a certain policy outcome, rather than because the law compels him to rule that way, that is judicial activism.

However, conservative judicial activism is much rarer than leftist activism, since conservatives in general have reverence for the law, while leftists see the law as something to be gotten around in the pursuit of (what they see as) justice. A good example of these divergent outlooks can be seen in the Presidential election of 2000, when Democrats wanted to "count every vote," while the Republican position was that every vote had been counted.

The problem was in the definition of "vote." Republicans thought "vote" meant "ballot legally cast," while Democrats thought "vote" meant "desire to cast a ballot."

It is perfectly possible (though only possible, not nearly certain) that if everyone who wanted to vote for Gore had managed to do so, that Gore would have won Florida, and thus the Presidency (and I accept that most Democrats really, really believed this to be the case--or at least convinced themselves that they believed it). But under the law, Bush was the clear winner. That's why the Democrats and their allies on the Florida Supreme Court wanted to ignore the law.

It is the same impulse which leads leftist and "moderate" judges to overrule the elected representatives of the people when they pass laws which offend judges' personal political sensibilities.

In fact, your own position (stated on this thread) that it is necessarily a good thing for the Court to rule in favor of personal freedom--even if they have no legal warrant for doing so--is another excellent example. When the law fails to give you what you want, the law must be gotten around by any means necessary. If you can't change it in the lawful manner. then get the courts to overturn it.

Your absolutist position on individual freedom is all well and good, but you must fight for it in the political arena, just like the rest of us. Some people actually don't believe that individual freedom necessarily trumps everything else; the judicial activism you praise shuts those people out of the political debate by imposing a certain policy preference on the nation.

[LanPB01]

In addition to the fact that unelected judges are not supposed to write our laws for us, it's also important to remember that the United States is NOT a place for mob rule democracy style. We're a constitutional republic, which keeps elected officials from acting as kings. In theory, the constitution should also keep judges in line, but we see how that has turned out.

Thanks to years of semi-socialist legislation, we have moved from a constitutional republic to what resembles a social democracy, where everyone feels they are entitled to everything regardless of whether they earned it or not. Since judges have not kept elected officials in line, we're eventually going to be placed in the situation where a politician is just going to blatantly promise to steal from the rich and give to the poor, and people will vote for him.

[Kay Ludlow]

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.

I see judicial decisions that give more and more rights to government as judicial activism. The courts have ruled on cases that allow the federal government to deny all use of land without compensation in a number of endangered species cases. Activist judges have sided with government in cases allowing zoning - for example that the government can decide how many people can live in a dwelling (like no more than 3 unrelated people can live together). Activists judges have no regard for the rights of the individual when it comes to property - they apparently agree that the best decisions are made by low level bureaucrats!

Activist judges have allowed "no-knock" raids, where a home can be ransacked by the police without a warrant (none is produced until well after the fact). They've allowed property to be siezed and kept on suspicion of a crime (under RICO), where inoccent people have to pay lawyers to get their property back. These cases increase the rights of government to the detriment of the rights clearly inumerated that we are to be free from unwarranted search and siezure.

These judges are not interpreting the constitution as written, they are deciding constitutionality based on their opinion of what the results should be. More and more effort seems to be being made at the federal judicial level to make the laws of all states the same. There is no question that infringes on the rights of the states!

Any casual reader of any of the letters and articles written at the same time the constitution was written would quickly see that the second ammendment was written specifically to protect the people against government - activist judges since the 30's have chosen to disregard the obvious meaning of the sentence and instead use it to make sure the government is protected from the people.

There can be activist conservative judges as well as activist liberal judges, but the shear number of activist liberal decisions that are impacting our lives every day causes me to have more concern about them...

[Sachem]

The main problem for me with judicial activism is that it takes decisions out of the hands of elected legislators and puts them in the hands of unelected judges tenured for life.

Yes, and courts must give great deference to legislators. However, the legislatures are the mere creation and convenience of the people. In our system, praise be the Founders, our legislatures are limited in their powers to limit our rights, our freedoms. Courts should show even more deference to citizens than their governments, however near the grass roots the governmental entity.

Of course the Constitution requires interpretation, we just object to courts making up the law.

Yes, but judges can't just decide one day to change a law they don't like. They must wait for a citizen to make a claim. Then, unless they wish to risk being overturned, they must look for a theory already "fairly" clear in the constitution. Whatever you may think of sodomy, the Texas case for example, was decided on the basis of the state's right to deprive a citizen of a liberty and the mandate for the state to respect its citizens' equal rights. The requirement for the state to respect these rights and liberties is in the 14th and it flow straight from the 5th.

You've written more good stuff, thank you. I'm trying to keep so I'll come back to this.

[BCrago66]

What you say is true - but that's not a failing of our Constitutional system. There are checks and balances that sometimes operate to limit governmental power and protect individual liberty, but these devices are insufficient when men of insufficient virtue or courage all seek power in concert and/or buckle under the pressure of one branch of government (e.g., when the Supreme court started passing New Deal legislation in response to Roosevelts threats).

[Centurion2000]

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

What a liberal would call conservative activism from the Courts would more properly be defined as strict contructionism of the Constitution.

[Sachem]

Democracy does not mean that unelected judges write our laws for us.

Right, but the judges interpret them - Marbury v Madison. How else could it be? Most importantly, the judges decide if the laws are constitutional, and considering the amendments (don't forget the 9th) the legislatures have a high hurdle when they pass a law to tell me what I can or cannot do.

Isn't that the way we want it? Limited government, maximum freedom?

[snarkpup]

And as for precedents, all that hallows them is that there were decided in the same imperfect human way, some time ago.

Indeed, precedents are not necessarily perfect (whatever "perfect" means). The key thing here is predictability. The value of precedents is that as each one is set, some formerly gray area in the law becomes predictable.

[LanPB01]

"Limited government, maximum freedom" - yes, I assume that's the way most conservatives want it. Again, you have to remember, what a social conservative would view as judicial activism (like the sodomy decision) might not be viewed as harshly by a libertarian or someone that considers themselve a fiscal conservative. That's why I focus on the affirmative action issue; in my opinion, there is no arguing about that decision by any conservative.

[superloser]

> There are lots of examples of where judges must interpret unclear, not precise language.

Fair enough, but how about when it is directly spelled out?

For example, the Nevada State Constitution says the state shall provide for public education. It also says they require a 2/3 majority to pass a tax increase.

Normal people would read that and figure the text says what it says and that the Nevada State Constitution is the highest law in Nevada, right?

Well, the Nevada Supreme Court held that there was "primacy" in their state constitution to fund education and that the 2/3 majority for a tax bill was a "procedural issue" -- effectively shredding their state constitution.

The Nevada Constitution has *no such* primacy clause.

THAT is Judicial Activism where the judges completely disregard the law and throw it out the window because the JUDGES think that there is a higher agenda to be met.

Comments?

[Vineyard]

Also, activist judges create whole new rights where none existed, or where the legislature exceeds its authority. Cities with "Rent Control" force owners of apartments to limit rent - which is a clear violation of the "Takings" clause of the Constitution. The legislature of cities/states have stolen property - and the courts have failed to protect minorities (the owners of the apartmentes.)

In California, in 1966, the State Supreme Court - very activist - allowed a party to sue Pacific Gas & Electric to change a written contract - unilaterally. The party wanted to submit additional information - outside of the binding contract. The CA Supremes ruled that extra-legal documents could be introduced!! This means that a contract isn't worth the paper it is printed on if one party decides that they want to introduce additional material.

The Miranda Warning is a Supreme Court interpretation of Bill of Rights ... INTERPRETATION. No where in the Constitution can you find a requirement that an obviously guilty person be turned loose because a Miranda warning wasn't given properly - but activist judges make that decision all the time. A criminal has new-found Constitutional rights ... but the poor victim has lost any Constitutional right to protection!! Where is that tid-bit found in the Constitution?? It is all in the interpretation.

Our latest Supreme Court - in ruling on the Texas sodomy case, quotes material from European laws. Do we want our Constitution to be held subject to other nation's laws? In Canada, speaking out against homosexuality can get you locked up. How soon before our own Supremes put limitations on free speech to protect homosexuals or other "minorities" from being "harmed" by "hurtful words"? Don't laugh - it has happened in other countries, and if our own Supremes want to be considered "enlightened" by other elitist judges in other countries - it is only a short time before it happens!!

There are many many many cases where activism has stolen the rights of some. You can't "enlarge" one person's rights without stealing someone else's rights ... and activism doesn't look at things in a balance. My classic example is concerning abortion. If a woman has a right to abortion, regardless of the input of the father, then women should never never be able to sue for child support (absent a binding contract - such as a valid marriage). At present, the woman can decide to keep the child and demand child support, against the father's wishes (he might prefer she abort, to save him money) ... or she can decide to abort, even if he is morally opposed to abortion and would be willing to care for and support the child. But the Supremes gave the benefits to women ...without the balance of responsibility.

Mike

[Kay Ludlow]

Isn't that the way we want it? Limited government, maximum freedom?

Is that what you see when you look around in your world? I don't. I see government at the federal, state and local level working hard to make sure we have to get their permission before we do more and more things - marriage licenses, drivers licenses, business name registration, building permits, zoning permits, mandatory education, fcc licenses, grazing permits, emissions inspections... and that's just the start. Those don't guarantee individual freedom, they guarantee government power - just like in the countries that don't have our constition.

[Sachem]

What a liberal would call conservative activism from the Courts would more properly be defined as strict contructionism of the Constitution.

What is strict contructionism? There is nothing in the history of the Bill of Rights that says it is all encompassing of our rights. Quite the contrary, many objected to any such list for exactly the reason that someone might get the idea that it was the whole list.

Isn't the whole idea of America that the government derives its just powers from the people and that we are free as birds unless we infringe the equal rights of others or unless the government has a reason that is both clear and compelling as well as not constitutionally impermissible to curtail our freedom?

I think it's important to get the hieracrchy straight. People inherently have rights, only limited by their infringing the equal rights of others and governments, not being the source of those rights, may only restrict them for substantial reasons not prevented by the Constitution.

Put as plainly as I can, according to the founders formulation, we don't get our rights from the Constitution or the Bill of Rights. The Declaration is clearest on this point and underpins everything else.

So what is this strict construction idea?

[Principled]

Welcome and thanks for the opportunity to share our point of view in re judgeships.

Here's an example:

Judges defy state constitution's requirement.

[olorin]

ping for later reference

[Sachem]

What a liberal would call conservative activism from the Courts would more properly be defined as strict contructionism of the Constitution.

What is strict contructionism? There is nothing in the history of the Bill of Rights that says it is all encompassing of our rights. Quite the contrary, many objected to any such list for exactly the reason that someone might get the idea that it was the whole list.

Isn't the whole idea of America that the government derives its just powers from the people and that we are free as birds unless we infringe the equal rights of others or unless the government has a reason that is both clear and compelling as well as not constitutionally impermissible to curtail our freedom?

I think it's important to get the hieracrchy straight. People inherently have rights, only limited by their infringing the equal rights of others and governments, not being the source of those rights, may only restrict them for substantial reasons not prevented by the Constitution.

Put as plainly as I can, according to the founders formulation, we don't get our rights from the Constitution or the Bill of Rights. The Declaration is clearest on this point and underpins everything else.

So what is this strict construction idea?

[BCrago66]

I think we all understand Marbury - and to that extent we are at the mercy of judges as the final interpreters of the Constitution.

But unless you're under the mercy of crappy modern philosophy, interpretation does not equal the creative activity of writing the law, i.e., there is a real, determinate meaning to the clauses in the constitution and task of the judge is no find that meaning, not create. It is a fact, for example, that the death penalty is not cruel and unusual within the meaning of the 8th Amendment.

You're giving us the theory of judges-as-guardians-of-our-rights that we all learned in Junior High School Civics. But if we choose judges who creatively make up the constitution as we go along, that will NOT safeguard liberty - quite the opposite.

Look at history. Your creative activist judges might give
you a sodomy decision here and there for you to get happy about. But your philosophy of make-it-up-as-you-go-along jurisprudence has largly been adopted since the New Deal, and quite the opposite has happened. Judges acting as you would like them to have restricted liberties - and have chosen not to protect those rights found in the constitution.

The basic point here is that activist judges - more often than not - give us less liberty than is guaranteed by the Constituion - not less.

[OREALLY]

Hi Liberal Democrat...I respect your honest introduction, this is unsual. Reading your posts...are you sure you are a liberal democrat ? God bless.

[LanPB01]

Yeah, I don't really see any indication that you're what we typically label as a "liberal democrat"; you sound more like a libertarian to me.