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Mon 10 Oct, 2005 01:56 pm
New York Times Opinion:
Activist Judges Are What The Other Side Has
By Nicholas Kristof (excerpt)
The left went to the Supreme Court to achieve a range of victories it could never have managed through the political process: barring school prayer, protecting protesters who used four-letter words, guaranteeing lawyers for criminal defendants, and securing a right to privacy that protected contraception and abortion....
So, granted, the courts were often the most efficient way to advance a liberal agenda, and cases like Roe v. Wade now deserve respect as precedents. But there were two problems with the activist approach. The first was that these rulings alienated ordinary Americans who just could not see how the Constitution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right.
The second objection is that conservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.... "Judicial activism" is usually associated with liberals, but Paul Gewirtz of Yale Law School has shown that lately conservatives have been far more likely to strike down laws passed by Congress. Clarence Thomas voted to invalidate 65 percent of the laws that came before him in cases, while those least likely to do so were Ruth Bader Ginsburg and Stephen Breyer. Indeed, Justice Breyer has written a thoughtful new book, "Active Liberty," which calls for judicial restraint and suggests that the best arena for resolving crucial national questions is legislatures rather than courts.
kristof wrote:The second objection is that conservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.... "Judicial activism" is usually associated with liberals, but Paul Gewirtz of Yale Law School has shown that lately conservatives have been far more likely to strike down laws passed by Congress. Clarence Thomas voted to invalidate 65 percent of the laws that came before him in cases, while those least likely to do so were Ruth Bader Ginsburg and Stephen Breyer.
This is clearly left-wing propaganda. Kristof makes no attempt to differntiate between judges creating new rights or precedents based on the own personal biases (i.e., judicial activists) and those of judges striking down unconstitutional laws passed by Congress. The latter is not "judicial activism", it is their job.
Judicial activism is defined as "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent."
Someone needs to tell Kristoff to retake his 8th grade civics class.
slkshock7 wrote:kristof wrote:The second objection is that conservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.... "Judicial activism" is usually associated with liberals, but Paul Gewirtz of Yale Law School has shown that lately conservatives have been far more likely to strike down laws passed by Congress. Clarence Thomas voted to invalidate 65 percent of the laws that came before him in cases, while those least likely to do so were Ruth Bader Ginsburg and Stephen Breyer.
This is clearly left-wing propaganda. Kristof makes no attempt to differntiate between judges creating new rights or precedents based on the own personal biases (i.e., judicial activists) and those of judges striking down unconstitutional laws passed by Congress. The latter is not "judicial activism", it is their job.
Judicial activism is defined as "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent."
Someone needs to tell Kristoff to retake his 8th grade civics class.
Perhaps someone needs to read the constitution.. The courts can't make new rights since the constitution specifically states..
Quote:
Amendment IX [ Annotations ]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
To claim a "right" is based on a personal bias shows your own personal bias.
Quote:This is clearly left-wing propaganda. Kristof makes no attempt to differntiate between judges creating new rights or precedents based on the own personal biases (i.e., judicial activists) and those of judges striking down unconstitutional laws passed by Congress. The latter is not "judicial activism", it is their job.
Agreed on the second point. On the first point I don't think a judge can create what already exists. If you mean that where government tries to curtail rights and a court seeks to restrain government from such action that somehow new rights have been created? I would disagree with that because rights aren't given by legislation to us.
Quote:Judicial activism is defined as "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent."
Precedents - in any matter before a court they can be followed or distinguished. The doctrine of stare decisis isn't so rigid that it allows for no change at all. And it doesn't just refer to "rights", the doctrine refers to all matters. A sensible judge will interpret the law and apply it - not merely pull out a rusted old template and make a pronouncement on whether or not the facts fit in the frame. If that were to be the case why have judges, why not just feed it the data into a computer and let it apply the immutable rules?
slkshock7 wrote:This is clearly left-wing propaganda. Kristof makes no attempt to differntiate between judges creating new rights or precedents based on the own personal biases (i.e., judicial activists) and those of judges striking down unconstitutional laws passed by Congress. The latter is not "judicial activism", it is their job.
Actually, that's a good point. Kristoff, in equating voting to strike down laws with "judicial activisim," is clearly missing the point.
slkshock7 wrote:Judicial activism is defined as "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent."
Who defines it in this fashion?
Joe,
Definition came from Merriam-Webster's Dictionary of Law 1996
parados wrote:Perhaps someone needs to read the constitution.. The courts can't make new rights since the constitution specifically states..
Quote:
Amendment IX [ Annotations ]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
To claim a "right" is based on a personal bias shows your own personal bias.
Parados,
I think I agree that the courts can't make new rights, but what's your point about Amendment IX?
Are you claiming that conservative Supreme Court justices (e.g. Thomas, Scalia) are using their judicial review authority to deny people other rights not specifically enumerated in the Constitution??? If so, I'd like you to give some specific examples.
My point is "judicial activism" is a complaint based not on a court's actions but on whose ox is being gored.
Courts by their statutory and constitutional role are supposed to interpret law. Just because one side or the other doesn't agree with the interpretation it doesn't result in "judicial activism." (The constitution is the "supreme law" of the land.)
Your definition of "judicial activism" is subjective. It requires that a judgement be made that the court's ruling was outside the intent of the authors of the law. The courts role is to do just what they did. It matters not what others think the intent was, the courts are the decision maker defined by the law.
In other words you believe there is no such thing as "judicial activism" simply different interpretations. Here I and many others must strongly disagree.
The most recent SC case on eminent domain is a good example. The Constitution states that the government can't take private property for public use without just compensation. Yet, the majority opinion has essentially voided the "for public use" clause and inserted new text i.e. "private economic development".
There's at lease one other thread on this board that deals extensively with this topic and the varying views and I don't want to rehash that discussion. However, I would still be very interested if you could point to a similiar decision written by Thomas, Scalia, or Rehnquist that equally changes the very text of the Constitution.
slkshock7 wrote:In other words you believe there is no such thing as "judicial activism" simply different interpretations. Here I and many others must strongly disagree.
The most recent SC case on eminent domain is a good example. The Constitution states that the government can't take private property for public use without just compensation. Yet, the majority opinion has essentially voided the "for public use" clause and inserted new text i.e. "private economic development".
There's at lease one other thread on this board that deals extensively with this topic and the varying views and I don't want to rehash that discussion. However, I would still be very interested if you could point to a similiar decision written by Thomas, Scalia, or Rehnquist that equally changes the very text of the Constitution.
I think this proves the point. This isn't - in my opinion anyway (for what it's worth) "judicial activism". But those who don't like the decision label it so. Thus "judicial activism" can mean anything I want it to mean.
slkshock7 wrote:Joe,
Definition came from Merriam-Webster's Dictionary of Law 1996
What makes you think that definition is definitive?
slkshock7 wrote:However, I would still be very interested if you could point to a similiar decision written by Thomas, Scalia, or Rehnquist that equally changes the very text of the Constitution.
Bush v. Gore.
slkshock7 wrote:In other words you believe there is no such thing as "judicial activism" simply different interpretations. Here I and many others must strongly disagree.
The most recent SC case on eminent domain is a good example. The Constitution states that the government can't take private property for public use without just compensation. Yet, the majority opinion has essentially voided the "for public use" clause and inserted new text i.e. "private economic development".
There's at lease one other thread on this board that deals extensively with this topic and the varying views and I don't want to rehash that discussion. However, I would still be very interested if you could point to a similiar decision written by Thomas, Scalia, or Rehnquist that equally changes the very text of the Constitution.
So it is only judicial activism because you don't like the ruling. As pointed out already by goodfielder, you proved my point.
"Public use" is a pretty wide open phrase. Walmart is there for "public use." You want to substitute "government run" for "public use." One needs only look back at RR right of ways in the 1800s to see govt providing land to private companies for "public use." If you want to argue that because Walmart didn't exist at the time of the constitution "public use" can't possibly mean Walmart then it means that anything invented or changed since then can't be covered. Such an argument would mean the second amendment would no longer cover breech loading weapons.
The real fly in the ointment of your complaint about the ruling is that it interferes with local government if you say they can't decide local issues and what is beneficial for their public. I love the idiots that decided to try to get Souter's home turned into an inn because of this ruling. They completely ignore that local governments have the right to make the decsions, not an individual from outside the locale. Local governments are voted in by local constituents. The locals have a local recourse if it isn't for "public use."
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