Ok, so the term is being thrown around a lot; and in my opinion far too much... but that's neither here nor there.

In one of my lectures today a prof. defined Judicial Activism as "reading the Constitution in a contemporary context." I think that's a fair assesment. My question to you is, why is this so bad? Everyone is up in arms about Gay Marriage, abortion, etc... but they immediately say that Judicial Activism is the problem. This seems like a cop out to me. Here's something to consider:

During the 20's, when the government tried to crack down on the illegal booze-trade, the FBI started using Wiretaps. This evidence was repeatedly challenged in court, and in Olmstead vs. United States it was finally determined that wiretaps WITHOUT a warrant were perfectly legal. The 4th amendment didn't apply to "hearing." Chief Justice (and former President) Taft wrote the majority opinion. His rotundness had this to say:



From a literal sense this is the correct interpretation of the 4th and 5th amendments. Taft oversaw a very Conservative Supreme Court. It wasn't until 1967 when the Olmstead interpretation was overturned in KATZ v. UNITED STATES; in which an Activist Court extended the right to privacy to telephone conversations.

What's my point in bringing up all this legal mumbo-jumbo? "Judicial Activism" is a convenient label that allows people to criticize legal decisions without engaging the parties involved... at least that's how I see it.

1. How would YOU define judicial activism?

2. Is it inherently progressive, or are progressive expansions of rights merely a function of a more inclusive society?

3. Are those that rally against Judicial Activism ready to return to the days when schools could be segregated and your electronic or telephone communications aren't protected? Or are you just upset at the decisions that "liberal" judges are arriving at?

1) Judicial Activism is when a judge goes beyond the reason of the original intent of a law. This goes for judges who lean left and judges who lean right. Politics does not belong in the courts! The law is the law and there should be VERY limited interpretation. I don't want a judge of any persuasion to make laws out of their decisions...because that is what the courts have the power to do. It is an abuse of power in which the President, Congress, and the People of this nation have no check on. Numerous times the federal judges make rulings on issues that should be left up to the states such as abortion and gay marriage.

2) Activist judges could be both progressive and regressive (which goes back to your definition of "progressive" in the other thread). But like i said...politics do not belong in the judiciary and i want to see to it that judges interpret the law in compliance with the original purpose. If you remember your history, judges during the Radical Reconstruction were basically able to invalidate the 13th, 14th, and 15th amendments with their interpretations. The Radical Repubs passed laws in Congress to allow blacks to vote but the courts found that a poll tax and literacy test were ok.

3) I definately believe it is the second one. No reasonable person would want to go back to segregationism or anything like that. The problem is that some judges are taking laws out of context and going above and beyond reason. If they did what they are supposed to...there wouldnt be a problem.

Theoretically, a decision like Roe v Wade can be changed every time a new Justice is added to the Supreme Court,constantly putting an issue in legal limbo. This isnt right. leave the issues up to the states! The courts are in place to uphold the Constitution and constitutional principles...not to push a political agenda.

There are interpretations of the Constitution that are clearly judicial activism.

Let me quote Madison, from Federalist Paper #41. Excuse the long quote. This is definitely in the public domain.



Despite the clearly defined limitation of the general welfare clause in Federalist Paper 41 judges throughout our history, and particularly since FDR cowed the USSC, have attempted to expand this clause. If you study the Constitutional convention and the subsequent ratification process you find that the Constitution was intended to be a limiting constitution that reduces the power of the federal government to powers specifically enumerated in Article I Section 8 and the amendments.



I would argue that Plessy v. Ferguson was an improper case of judicial activism. Everyone knew the seperate systems were not equal. Brown corrected nearly a century of judicial abuse. Technological changes often lead to a need to interpret the constitution in light of those changes. This is a proper role of the court.

The courts should first consider the literal wording of the constitution and secondly the intent of the words when written. When a court ignores both the literal meaning and the intent of the authors they are practicing judicial activism.

Of course many would argue I am taking a Madisonian vs. a Hamiltonian view of our Constitution. Let me quote Hamilton.

- Alexander Hamilton, Federalist 83

And again

- Alexander Hamilton, Federalist 78

And how about this statement? FDR speaking of prohibition.

- Franklin Delano Roosevelt, 1930

Remember as late as 1930 it was standard thinking that the powers of the federal government were specifically enumerated. A lot of judicial activism has been going on since.

Questions #2 and #3 show a liberal bias in the first instance. Judicial activism is not always "liberal" or "progressive". Judicial activism can just as easily be conservative. It just so happens that most judicial activism we see today is the liberal brand.

Judicial activism is when the judges not only go beyond the original intent of the framers but when they also stretch existing precedent to fit their political views. A perfect example of judicial activism is the Mass Sup. Ct's decision in Goodridge which mandated the state to recognize gay marriage.

The court applied the "rational basis" test to determine if the existing Mass law defining marriage as between a man and a woman was constitutional. In almost every instance when a court applies this test, the law being tested is found to be constitutional. Not so in Goodridge. Essentially the court held that Massachusetts had no rational reason for limiting marriage to one man and one woman. In short the law was "absurd" in their view.

No matter what side you take on the gay marriage, it is clearly judicial activism to hold that the state has no RATIONAL reason (or that it is absurd) to define marriage the way it has historically been defined throughout human history.

1. How would YOU define judicial activism?

Actvist judges tend to think that they should shape constitutional meaning to contemporary society.

Conservatives are usually against judicial activism because it means that judges are willing to change the status quo. A conservative in definition attempts to defend the status quo, so they are more likely to be upset by judicial activism. Traditional american conservatives also tout state rights over federal, the Supreme Court being a federal entity, there is also going to be some conflict there as well.

The idea that judges are not political is an ideal, it is impossible to realize in real like. In 1835 de Tocqueville recognized that, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,"

As time goes by and the society we live in becomes more and more different than the one in which our constitution was created interepreting the constitutions to adapt to those changes will become more and more needed. Judges will have to become more active rather than less. As former Justice Justin Felix Frankfurter said, "The meaning of "due process" and the content of the terms like "liberty" are not revealed by the constitution. It is justices who make the meaning...Let us face the fact that five Justices of the Supreme Court are the molders of policy rather than the impersonal vehicles of revealed truth"

Gay marriage is an issue that should be handled by the courts. Marriage is a civil rights issue and thus should be addressed federally not by single states. Just because it is "traditional" for marriage to be between a man and women doesn't mean that it has to remain that way.

That is why the states have no rational reason to define marriage as between a man and a women. It is not meant to "protect marriage", marriage between a man and women would still be allowed if homosexuals were allowed to marry, but are designed to prevent others from enjoying their full civil rights.

1.How would YOU define judicial activism?
I defined it as judicial interpretation that goes beyond original intent and extends existing precedent to fit a particular political view.

You acknowledge it yourself when you quote Frankfurter: “Let us face the fact that five Justices of the Supreme Court are the molders of policy rather than the impersonal vehicles of revealed truth"”

Well, I am not willing to throw up my hands and let five old men and women dictate the direction of policy on key issues in this country. It is well . . . undemocratic to say the least.

At a minimum we should require the court be unanimous (or at least a supermajority) when such key policy issues, like gay marriage are dictated. Why not require the same of the court when it modifies our constitution as we do of our legislature?

But we don’t require that do we? And so we are doomed to let our two-party system become even more skewed. People who would normally vote democrat on every other issue, override that preference to vote for George Bush because he will nominate judges that are pro-life, or pro-family. It is a very high price to pay to keep our judicial aristocracy in power.


Finally, gay marriage is not a “right” and characterizing it as such is the political rhetoric that takes it into the courts in the first instance. State-recognized Marriage (as opposed to a religious ceremony) is a creature of the state and has always had a certain quid pro quo. It was established for purposes relating solely to heterosexual relationships and their potential to produce offspring. That doesn’t mean that we shouldn’t recognize gay marriage – through the legislature. We, the people can define marriage however we see fit. It just means that it is not the court’s place to mandate gay marriage on the basis of some kind of civil right.

I'm denying that the Supreme Court is inherently elitist. That is how it was designed. It is a check against democracy. The founding fathers had a clear fear of the masses and the ability of special interests to influence Congress.



This is of course would be true if we had a pure democracy, but we don't we have a Republic based on a constitution. The Supreme Court has the power to interepret the constitution as to adapt it to modern times.



That is simply not the definition that I have traditionally seen assigned to Judicial activism. It has nothing to do with a political view. It simply concerns how willing a justice is to interpret the constitution beyond its traditional bounds.



This is simply impossible. There's so many different ways in which that idea doesn't work. Every supreme court decision is important as it sets precedent for future decisions, there is no way it could operate if it was required to vote unanimously to get something passed. What would have happened with the 2000 election?

And the court is not modifying the constitution, it is simply interepreting it.

With gay marriage the key concern is the 14th amendment's Equal protection clause. In the 1996 Romer v. Evans decision the Court said that homosexuals do not represent a special interest, but deserve the same consideration as all heterosexual citizens. Thus, the ability to marry can not be limited to heterosexuals, but the right must be given to homosexuals as well.

Remember that the constitution was conceived of with the idea of protecting the minority from the "tyranny of the majority". It is elitists in nature.

(1) First off, we may not be a pure democracy but we are a representative republic. So, our elected officials are politically accountable. Supreme court judges are not. And the Supremes themselves, gave themselves the "right" to interpret the Constitution. Back in 1891 or whenever it was under Marbury v. Madison. Judicial activism as we know it didn't really rear its ugly head until the 30s (with conservative activism) and then from the 60s onward (with liberal activism).

(2) I am not suggesting "unanimity" in every Supreme court decision as a remedy. But I am suggesting we interject some restraint given the lack of political accountability. For example, in all instances where the Supremes overturn a democratically enacted piece of legislation as "unconstitutional"-- they should be required to do so in an opinion that reflects a supermajority of the justices. At the very least this would insure that their policy making cuts ACROSS political lines.

(3_ Finally, the courts do indeed "modify" the constitution-- they don't interpret it and that is the problem. Like I said in my original post in this thread, the Goodridge decision is a perfect example of judicial activism. It went way outside the bounds of existing precedent in its holding. No reasonable definition of "interpreting the constitution" could include what they did in pronouncing that the state has not rational basis for limiting marriage to one man and one woman. I suggest you read the 3 dissents in the Goodridge opinion to get a good understanding of what I am saying. In fact, one of the dissents was written by a woman --who herself is homosexual. Kudos to her as she did not let her own political views/agenda interfere with a correct reading of the constitution.

[QUOTE]
First off, we may not be a pure democracy but we are a representative republic. So, our elected officials are politically accountable. Supreme court judges are not. And the Supremes themselves, gave themselves the "right" to interpret the Constitution. Back in 1891 or whenever it was under Marbury v. Madison. Judicial activism as we know it didn't really rear its ugly head until the 30s (with conservative activism) and then from the 60s onward (with liberal activism).[/QUOTE]

And you vote for the elected officials who select the judges. Another reason why presidential elections are so important. And the "Liberal activism" of the 60's was based on the appointment by Eishenhower of Earl Warren, so unless Eisenhower, a Republican, freely appointed a Democrat, politics as it is traditionally depicted (Reps vs Dems) is not the same in the judicial branch.

[QUOTE](2) I am not suggesting "unanimity" in every Supreme court decision as a remedy. But I am suggesting we interject some restraint given the lack of political accountability. For example, in all instances where the Supremes overturn a democratically enacted piece of legislation as "unconstitutional"-- they should be required to do so in an opinion that reflects a supermajority of the justices. At the very least this would insure that their policy making cuts ACROSS political lines.[/QUOTE]

Again, this is not feasible. The Supreme Court is designed to judge the constitutionality of new legislation, to prevent them from doing this by requiring a supermajority would simply lead to the Court being unable to do anything.

[QUOTE](3_ Finally, the courts do indeed "modify" the constitution-- they don't interpret it and that is the problem. Like I said in my original post in this thread, the Goodridge decision is a perfect example of judicial activism. It went way outside the bounds of existing precedent in its holding. No reasonable definition of "interpreting the constitution" could include what they did in pronouncing that the state has not rational basis for limiting marriage to one man and one woman. I suggest you read the 3 dissents in the Goodridge opinion to get a good understanding of what I am saying. In fact, one of the dissents was written by a woman --who herself is homosexual. Kudos to her as she did not let her own political views/agenda interfere with a correct reading of the constitution.

[/quote][/QUOTE]

First of all this is not refering to the US constitution, but the Mass. state constitution. From what I can gather the state constitution gives certain powers to the State Supreme Court, but again they are not set in stone. It is still up to the Court to decide how widely it can interepret the constitution. To me it seems like the supporters ruled with the US constitution, specifically the 14th amendment in mind. The dissenters tried to invoke the idea that the state constitution does not allow the state supreme court to examine it beyond a certain constraint.

The dissenters also rely on the idea of tradition, but in my opinion tradition in itself is not not to support something.

1. How would YOU define judicial activism?

George W. Bush has talked about appointing “strict constructionists” judges as did Richard Nixon before him. Allegedly “strict constructionists” would be people who interpret law rather than make it as judicial activists allegedly do.

I would suggest that the whole concept of judicial activism is nothing but a catch phrase. Every judge brings to the bench a set of values that determine how he or she rules on a case. This is the same for Antonin Scalia and Clarance Thomas as it was William O. Douglas, Thurgood Marshall and John Marshall. In making a decision, all judges run things through their own set of historical and sociological filters.

In 1921, Supreme Court Justice Benjamin N. Cordozo published a series of lectures in a short book entitled The Nature of the Judicial Process. Cordozo wrote:



Hence, Nixon’s assertion that a ‘strict constructionist’ merely placed the law beside the Constitution to determine if the two squared is a gross oversimplification.

The concern of many liberals is that a more conservative court may overturn decisions like roe v. wade. If that happens, the decisions will be no less activist than those that produced more liberal decisions.

Judicial activism is at root a right-wing buzz phrase--a phrase used fan fires by the Rush Limbaughs, Ann Coulters. Sean Hannitys and Joe Scarboroughs of our land.

For TOTD:

You wrote:
And you vote for the elected officials who select the judges. Another reason why presidential elections are so important. And the "Liberal activism" of the 60's was based on the appointment by Eishenhower of Earl Warren, so unless Eisenhower, a Republican, freely appointed a Democrat, politics as it is traditionally depicted (Reps vs Dems) is not the same in the judicial branch.


What you say used to be true prior to the mid -80s. But the paradigm changed in the mid-80s with the Bork nomination. Prior to that, judicial nominations (1) were approved by the Senate with little debate and (2) we had "surprises" like Warren being appointed by a republican. The new paradigm proves that you can predict much better the political actions and leanings of the justices. You need only look at the nominees post - Bork. We are in a different era now and our actions need to reflect that. Like I said, you need only look at the bizarre voting preferences in current elections to know we have a problem. People shouldn't feel compelled to vote for a president based on his judicial nominations. Many of the evangelicals (I hate to lump them together like that), poor, southern and traditional voted for Bush based on his traditional family stance and his promise to appoint conservative judges. Democrats need to wake up to this fact. All this talk about Democrats having to frame the issues in terms of "values" etc etc is a bunch of nonsense in my view. Take the judicial nomination issue off the table and the party that will benefit the most is the Democrats. IMHO.

You wrote:
Again, this [the supermajority requirement] is not feasible. The Supreme Court is designed to judge the constitutionality of new legislation, to prevent them from doing this by requiring a supermajority would simply lead to the Court being unable to do anything.

But as human beings they have a bias. We can't escape that. Just like the original quote from Frankfurter that you posted. As such, we need to put the checks and balances in place with respect to the judiciary. A supermajority requirement is no where near insurmountable as you suggest. It will insure that policy making by the Court cuts across political lines. Remember, Brown v. Board of Education was a UNANIMOUS decision.


You wrote:

First of all this is not refering to the US constitution, but the Mass. state constitution. From what I can gather the state constitution gives certain powers to the State Supreme Court, but again they are not set in stone. It is still up to the Court to decide how widely it can interepret the constitution. To me it seems like the supporters ruled with the US constitution, specifically the 14th amendment in mind. The dissenters tried to invoke the idea that the state constitution does not allow the state supreme court to examine it beyond a certain constraint.

Absolutely true that it was the state constitution that was examined. But trust me, the basic constitutional "tests" still apply. State constitutions can grant greater liberties than the federal constitution, but they don't fundamentally change the tests that are applied. The offensivenes of Goodridge in my view relates to its application of the rational basis test. It is such a strange opinion. The majority makes every single reference possible (including a pointed reference to the Lawrence v. Texas case) that would lead any reader to believe that the court would designate marriage a "fundamental right" and apply strict scrutiny-- but then they don't and at the last minute, apply rational basis. Very very strange.

Part of me wants to believe that the Court can simply interpret the Constitution, as the Conservatives so often say. But I just don't. I believe that they cannot escape their own bias and because of that, I believe very strongly that we must put some kind of a fair restraint on them. The supermajority requirement is the best I can come up with. And I know many conservatives who are vehemently opposed to any kind of restraint that I am suggesting because they know it takes away THEIR power to get conservatives on the bench to possibly overturn roe v. wade for example.

I am just plain tired of the skewed political results that come from this new "paradigm" in judicial nominations. I am tired of the fighting to the death of every nomination because the Senate knows how much influence the judges will wield. We need to take the whole issue off the table.

I agree wholeheartedly that each judge brings his own set of values to the bench and really cannot escape them when "interpreting" the law. But I thoroughly disagree that "judicial activism" is a right wing buzz phrase. It is an accurate phrase and applies equally to both conservatives as well as liberals. Most recent example of "right wing" activism is the Bush/Gore decision in 2000. And liberals should worry about the possibility of Roe v. Wade being reigned in. It will be if Bush gets his nominees on the bench. Rehnquist-- not relevant, he is a conservative and will be replaced with a conservative. But the oldest one is Stevens at 84 I think and he will likely step down during Bush's tenure. He will be replaced by a conservative and then -- well --- Roe will be the first to be "modified". The simple majority will have shifted to favor clearly the conservatives.

This is exactly why my pet peeve is "judicial activism". It needs to be addressed in a fundamental "non political" way. We can't go on fighting over the nominations as we are now-- hoping that a judge that holds our views is nominated. We need to insure that the process itself cuts across political lines. Again, that is why I fully support some kind of a check on the judicial opinions. Ex. If Roe (or its progeny) is going to be modified, let it be done by more than the simple 5 judges-- make it 7, say, out of the 9. This should apply to any constitutional modifications from the justices.

According to a Los Angeles Times story reprinted in The Fort Worth Star Telegram today, the ailing conservative Chief Justice of the United States, William H. Rehnquist, agrees with my take:



<snip>



<snip>



http://www.dfw.com/mld/dfw/news/nation/10543854.htm?1c

Judicial activism IS a right-wing buzz word. Here’s how it works. During the 2000 presidential election Al Gore said that he worked in Congress to create the internet. Ann Coulter maneuvered her broom into a vacant space in the parking lot, got a thesaurus from her office bookshelf and discovered that “invent” was a synonym for "create." Bingo, Al Gore was a liar who claimed he “invented” (like in writing code) the net. Soon other right-wing sources picked it up and it finally got into the mainstream media. Despite numerous sites debunking this myth, there are still people who think Gore claimed to have "invented” the internet.

The same applies to "judicial activism." The hacks and quacks, kings and queens of right-wing media harp on the phrase. Soon it’s in the legitimate media. Then politicians like George W. Bush capitalize on it by talking about appointing “strict constructionists.” Tom DeLay capitalizes by threatening to impeach justices who oppose his views on chiurch and state.

Tom DeLay, a “born again” Christian (see note) makes threats to impress his conservative base. It seems DeLay wants to change the very fabric of our judicial system.

With Justice Rehnquist, I would suggest that there is more danger in altering the role of the judiciary as a separate but equal branch than there is from a phantom like “judicial activism.

Note: Tom DeLay started his career in the Texas State Legislature. According Lou Dubose and Jan Reid: The Hammer: Tom DeLay, God, Money, and the Rise of the Republican Congress. According to Dubose and Reid, Delay was a back bencher in the Texas Legislature.



<snip>



Then “Hot Tub Tom” met Jesus while listening to Hank Williams sing “I Saw the Light” and watching James Dobson on a TV screen. In Keith Olbermann fashion, I made up the bit about Hank, but according to Dubose and Reid:



<snip>



It seems to me that the "self-centeredness," the “me, me, me, me” part has never changed. Why does a flaky, sore toe of a Congressman from Sugar Land, Texas think he has the right or authority to change two centuries of federal court history? I would call this Congressional arrogance!

For Bof

You quoted Rehnquist as saying:

WASHINGTON - Chief Justice William Rehnquist said in a statement to be released today that judges must be protected from political threats, including those from conservative Republicans who maintain that 'judicial activists' should be impeached and removed from office.

The public, the media and politicians are free to criticize judges, Rehnquist said, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.


What the heck else do you think he is gonna say? Those who hold the power don't want to give it up. Of course he is going to defend the life time tenure of Supreme court justices and argue that they ought not to be subject to any political accountability.

I happen to disagree. Judicial activism is not some kind of right wing buzz word created in the last few years. Legal scholars began talking seriously about it in the 70s. Congress got wind of the absolute power in the 80s when the Senate blocked the nomination of Bork. Did you know that prior to the Bork rejection-- no Supreme Court justice nominee had ever been blocked by the Senate? The closest thing we can point to is when the Senate-- blocked one of the judges (forget who) from becoming Chief judge-- but he was already on the bench.

When we give the Supremes the right to overturn democratically enacted legislation with a simple majority signing on-- it flies in the face of our balance of powers. You, yourself asserted that the judges cannot escape their own subjectivivty when making their decisions. Doesn't it make sense to insure that the process itself will cut across political lines? I say they should be subject to something analogous to a supermajority (7 out of 9) when they overturne as unconstitutional a democratically enacted piece of legislation. At a minimum this will insure that the judges are not deciding based solely on political considerations. Like I said before, Brown v Board of education was a unanimous decision. If State action is truly unconstitutional-- the Court should be able to muster up the 7 over 10 win.

I disagree to this post on several fronts.
First of all, the blocking of the hitman in the Saturday Night Massacre (Robert Bork) was not the first blocked nomination.


Court vacancy would trigger political warfare


The Judicial Bookshelf


Second I see a confusion between judicial activism and congressional power grabbing. Blocking a Supreme Court nomination is not an act of judicial activism. I would think someone who is concerned about the concept of judicial activism would want Congress (the Senate) to exercise its powers of advise and consent very thoroughly because of the concern of letting a person with an agenda gain a lifetime position on the court.

Additionally, the phrase about Congress getting wind of absolute power in the 1980s certainly does not ring true with me. The Congress barely seems to have power to lead or control anything anymore. The time of power in the hands of our legislative branch of government in this country was in the 19th Century when giants like Clay and Webster and Calhoun dominate American politics.The Great Triumvirate: Webster, Clay, and Calhoun

We live in the age of the imperial presidency. The executive branch plays the central role in the government, from leading legislation, to appointing the heads of the departments that do the business of running the government, to controlling the decision to go to war, to dominating the budget process, to picking the people to nominate to the federal judicial seats. Nowhere do I see Congress dominating the political process, they must be flattered and bribed to act and they can block, but I see Congress's powers as waning, not waxing.

Finally I don't see how judicial activism "flies in the face of our balance of powers." The judiciary is one of our three branches of government. It interprets laws and reviews the Constitutionality of the actions of our government. I fail to see a trend of horrific rulings of judges trying to make law and make themselves famous by doing so. I do not see a string of rulings from our Supreme Court that defy established precedent. Judicial activism is another marketing tool like Death Tax and Marriage Penalty that shows the Bush Administration and the Republican party winning the war of words. It is part of a campaign to limit the power of the judiciary and to use politics to intimidate judges into behaving in a way that is not construed as judicial activism.

How many of us believe that if there is a core of social conservative judges in our judicial branch that the Republican party will be crying out judicial activism if decisions are making law instead of defending liberal established judicial precedent from the previous half-century? Like all of those term-limiters who have found ways to extend their terms in Congress after leading a republican revolution in 1994.

There is a contest of the courts. And judges who are making "liberal" rulings are being highlighted by the Bush administration as part of its successful battles in our culture wars. He as also successfully depicted the Democratic members of Congress as obstructionist even though the approval rate of Bush nominees is vastly higher than the approval rate of Clinton appointees in the face of Republican filibusters. Yet, Bush has expertly created the appearance of irrational obstructionism on the part of the Democratic Party.

The balance of powers is barely holding, and the so-called judicial activism is the much-needed judicial independence that is the mainstay of our Constitutional liberties and what remains of our balance of powers.

Wow Eyore-- I am shocked at how you have used direct quotes to MISREPRESENT AND paint an inaccurate picture of the when the stalling of judicial nominations started.

I will respond to your posts in two separate responses. This one deals with the picture you paint with the direct quotes above. What you represent (as I read it) is that the stalling of judicial nominations has been thriving since at least the 60s with the Fortas nomination. You quoted from the MIDDLE OF THE LINK:

"The Bork fight was part of a cycle of retribution that went back to President Lyndon Johnson’s nomination of Associate Justice Abe Fortas to serve as chief justice in 1968.
Southern Democrats and northern Republicans combined to filibuster and kill the Fortas nomination. They opposed Fortas because he was Johnson’s close friend and was an unabashed liberal at a time when many in Congress blamed the rulings of the 1960s court for tilting the advantage to criminal defendants.
Angry that conservatives had denied a Democratic president the chance to fill two vacancies on the court, liberal Democrats joined liberal Republicans to defeat two of President Richard Nixon’s nominees in 1970, Clement Haynesworth and Harold Carswell" is drawn from the MIDDLE OF THE ARTICLE THAT YOU LINK TO:

http://msnbc.com/news/902274.asp?cp1=1

The quote gives the impression that the stalling began in 1968 and was nothing new to the Bork nomination in the 80s. Very misleading. The point that I was making (and validly so) was that since the Bork nomination we have had an UNPRECEDENTED amount of fighting -- tooth and nail -- over judicial nominees. The Fight didn't start in the 60s. Read the beginning of the article YOU CITED:

As the Supreme Court winds up its 2002-’03 term this week with rulings on affirmative action and sodomy laws, Washington abounds with reports that at least one of the justices will retire. That would mean another of the capital’s epics: a Gladiator-style battle over Senate confirmation of President Bush’s nominee. Democrats have proven in the past five months that they can carry on a filibuster to block a vote on Bush’s appeals court nominees. Nothing suggests anything less than an all-out war over a high court vacancy.

It was not always this way. Prior to the struggle over President Reagan’s nomination of Robert Bork in 1987, most nominees won swift and cordial Senate confirmation.
Hearings on nominees conducted by the Judiciary Committee were often perfunctory affairs. Same link.

For Eeyore

You wrote:

Second I see a confusion between judicial activism and congressional power grabbing. Blocking a Supreme Court nomination is not an act of judicial activism. I would think someone who is concerned about the concept of judicial activism would want Congress (the Senate) to exercise its powers of advise and consent very thoroughly because of the concern of letting a person with an agenda gain a lifetime position on the court.

There is no confusion between judicial activism and congressional power grabbing. You misunderstood what I wrote. I was not suggesting that blocking a supreme court nomination was an act of judicial activism! However, I WAS suggesting that members of Congress have come to understand the absolute POWER wielded by the Justices and how they do indeed practice “judicial activism”. For that reason Congress has turned the entire process into political warfare.


You wrote:

Additionally, the phrase about Congress getting wind of absolute power in the 1980s certainly does not ring true with me. The Congress barely seems to have power to lead or control anything anymore. The time of power in the hands of our legislative branch of government in this country was in the 19th Century when giants like Clay and Webster and Calhoun dominate American politics.The Great Triumvirate: Webster, Clay, and Calhoun

Again, you fundamentally misunderstood what I meant. I was not suggesting that Congress got wind of the power it has—RATHER I was suggesting that Congress got wind of the power THE COURT HAS. And yes, I agree the time of power in the hands of the legislative branch was probably more in the 19th century. One of the big reasons for the Judicial aristocracy we have today, is the ABDICATION of responsibility by the Legislature.

You wrote:

We live in the age of the imperial presidency. The executive branch plays the central role in the government, from leading legislation, to appointing the heads of the departments that do the business of running the government, to controlling the decision to go to war, to dominating the budget process, to picking the people to nominate to the federal judicial seats. Nowhere do I see Congress dominating the political process, they must be flattered and bribed to act and they can block, but I see Congress's powers as waning, not waxing.

Agreed. Congress’ power is waning. Never said otherwise. Although, I don’t see the Executive as wielding all that much power as you suggest. Congress still is the only one with the authority to declare war.

You wrote:

Finally I don't see how judicial activism "flies in the face of our balance of powers." The judiciary is one of our three branches of government. It interprets laws and reviews the Constitutionality of the actions of our government. I fail to see a trend of horrific rulings of judges trying to make law and make themselves famous by doing so. I do not see a string of rulings from our Supreme Court that defy established precedent.

You need to look harder then. Read the dissents in the Goodridge opinion (Mass. ruling on gay marriage). Although it is not a U.S. Supreme Court decision, it is a primary example of judicial activism – a court opinion that defies precedent.

In regards to the above quote I don't know why I would look to a state supreme court decision to cite judicial activism. It is a decision that defies precedent in the sense that gay rights in a new political issue that our Constitutions need to be measured against. I suspect that the Massachusetts ruling, while incredibly unpopular around the country, was a correct interpretation of the Constitution of the State of Massachusetts. In a country that was launched on the principles of political equality by the Declaration of Independence, it seems odd to call the extension of progress in securing this equality for all of our adult citizens. Where should we turn back? Brown v. Board? 19th Amendment? 13-15 Amendments? Removal of property requirements for voting?

Again judicial activism is a marketing term. What should be looked for is judicial misconduct. If you want to extend the scope of my quote to state Supreme Courts, what legal error did the Massachusetts Supreme Court make in this situation?

Judicial impact on the state and local levels increased because of dealing with major issues that the states did not adequately respond to. Both were related.

Unable to move in a direction to rid our country of slavery, and provide an equal citizenship for its citizens, Congress (and then the states, with remaining unreconstructed Southern states being forces to ratify this Amendment to reenter the union) passed a vaguely worded tepid amendment in the 14th Amendment to give more power to the federal government to guarantee Constitutional freedoms to residents of states in their relationship to state governments.

After nearly a century of non-action in extending these equal rights to all citizens, the a new age of judicial and legislative infringement began in the 1950s that landed the Brown v. Board decisions and the Civil Rights and Voting Rights Acts of the 1960s.

Actually you’ve put the shoes on the wrong feet. To do away with two centuries of practice would do more to upset the balance of powers than to continue to have decisions made by a majority of the court.



Please explain the nuts and bolts of your “supermajority” plan. Who would make the decision to impose these changes? Anything like this would and should be seen as tampering, much like Franklin Roosevelt’s failed attempt to pack the court in the 1937. Imposing a “supermajority” would hamstring the court. This sounds like a gimmick, sort of like giving Bush a line item veto without a Constitutional amendment.



Actually Supreme Court Justice Benjamin N. Cordozo noted this in 1921. Nothing in imposing "supermajority" will change this.



Actually we have not had an officially declared war since WWII. Yet we’ve fought them in Korea, Vietnam and now Iraq among other places. Congress has abdicated its Constitutional responsibility by giving Presidents authorization and funding. The results have been disastgrous in Vietnam and in Iraq. As Eeyore noted, Arthur M. Schlesinger’s Imperial Presidency is alive and well in Bushland.

Although the Goodridge decision looked to the Mass. Constitution, the operative constitutional law was the same. The precedents cited in the opinion are U.S. Supreme Court precedent for the most part. In fact, the majority opinion pays alot of lip service to gay marriage being a "fundamental right" (citing U.S. constitutional precedent) and cites the Lawrence v. Texas case-- but then does a 180 turn around and doesn't follow through in its analysis-- i.e. it does not analyze gay marriage as a fundamental right. You will miss a good opportunity to understand what "judicial activism" means if you dismiss this case as just a state constitututional case. It is really very interesting to read the opinion, especially the dissents, so as to gain a good understanding of what people mean when they speak of "judicial activism".

My beef with judicial activism has nothing to do with "results" and everything to do with "process". I think people who dismiss it as a political buzz word are not looking past the results. Judicial activism as we know it was born out of the due process clause-- you are correct. But in fact, this judicial activism first reared its head in the 1930s where the due process clause was used to further "economic" interests as opposed to "individual rights". In fact, there is a fun kind of inside joke made by Scalia in the dissent to Lawrence v. Texas where he speaks about regulating Baker's hours. If you are interested I will dig up the quote for you. His comment in the dissent refers directly to how the Court back in the 30s overturned the legislature's regulations on how many hours a Baker could work in the name of "economic rights" under the DUE PROCESS clause. He was making the point that the overturning of the sodomy law in the Lawrence case was exactly analogous -- except the due process clause was being used to overturn the sodomy law in the name of "individual rights" under the DUE PROCESS clause. Point is-- in both cases we have judicial activism-- whether it is to further economic rights of corporations (in the 30s) or individuals (in the 90s).

So it really irks me when people seem to think that judicial activism is born out of some kind of political tactic of the current administration. That is simply not true.

Well perhaps you will agree with this, and probably not. Judicial activism is a form of name-calling used rhetorically against decisions that are construed by the name-caller to be far outside the bounds of appropriate legal interpretation.

If you must stick with the term judicial activism, there is no way to have an independent judiciary in a changing world and not have judicial activism.

But when one side of a culture war brings out the term again and again it is trying to win a battle of public opinion. It is an effective tactic and it is a tactic of our present administration.

It is simply a way of saying that judge was wrong.
A Link to an article making the point that judicial activism as a tool in a rhetoric war, not a style of being a judge, and not a conservative versus liberal thing in the sense that being a so-called activist judge can only be done by one side of the political spectrum and not by the other.

The Massachusetts Supreme Court case does cite many federal cases along the way. It also relies heavily on the guarantees of individual equality laid out in the Mass. Constitution.

The majority decision also looks at the case presented to it by the attorneys for the DEPARTMENT OF PUBLIC HEALTH



Not a very persuasive case as depicted in the majority decision. I'll say this, if I was only attracted to members of my same sex I would definitely feel like a second class citizen if I were not able to marry the person of my choosing and create the legal rights that would allow my partner to have the rights in regards to my affairs and my dependents that my spouse was today. As a heterosexual I don't see procreation as being a defined part of marriage. I don't see a valid argument that says a hetero-sexual couple is better equipped to parent than a homosexual couple, and I have some great negative examples in mind to trot out in my defense, and if equality is at issue, then that trumps scarce State and private financial resources.

A dissenting opinion begins like this


Hillary GOODRIDGE & others [FN1] vs. DEPARTMENT OF PUBLIC HEALTH & another. [FN2] SJC-08860

What I see here is an alarming twist of logic that says to me that the state legislatures so-called "power to effectuate social change" is more important than my civil liberties. I don't see a need for a legislature to effect social change short of guaranteeing individual rights and freedoms. So I see Brown v. Board as a good things, and Plessy v. Ferguson as a perversion of justice. I don't want my governments to be able to act "without interference from the courts." What is the interference from the courts here? Isn't it the Supreme Court carrying out in good faith its power of judicial review (concept set in place by an activist judge named John Marshall against states rights advocate Thomas Jefferson and the VA/KY resolutions?)

At the end of the day we have a disagreement over this case in our understandings of the law as amateurs (at least on my part). I do not see a great model example for judicial activism. I see a court reacting to a changing world by making the best decision it could find and using precedent in good faith to make arguments.

Sadly, this case, which protected a citizen minority group from control by the minority in the name of equal rights, is a double edged sword to be used against the liberal/Democratic elements of our political system with both edges. I feel it played a major role in helping turn out the social conservative vote and other swing votes in a country that clearly feels that homosexual marriage is not a natural right, and it will be used against Democratic political candidates who are going to be depicted as anti-family values because as a decision made by a Supreme Court in a liberal state.

And at the end I see the term judicial activism to be a political tool to try to shape public opinion in our present culture war. I don't do it to irk you, but if you don't see the term political activism as a tool in the arsenal of the Bush administration, than you and I read the news and the comments of the president in an extremely different way.

Edited to add a response to some comments I missed due to an earlier double post.
link

The accusation


The argument


I didn't see a winning point in the quote from my source, others can recheck it on this thread. But you said something very different than we had an unprecedented (still unproven) amount of fighting recently over judicial nominees. You said the blocking of judicial nominees had never happened until the Democrats blocked Bork's nomination.

This is what you said and I proved that it was an untrue statement. And for my troubles you started with an above quote that claims that I misrepresented and painted an inaccurate picture of when the stalling (did you mean blocking?) of judicial nominees started.



Are you arguing that I am being misled by this article in finding proof that judicial nominees had been blocked before Bork and that some of those were in the 1970s?
Link

 
For Eeyore- thanks for your well thought out responses. This type of exchange in debate is exactly what I hoped to find on this forum.

You wrote

Well perhaps you will agree with this, and probably not. Judicial activism is a form of name-calling used rhetorically against decisions that are construed by the name-caller to be far outside the bounds of appropriate legal interpretation.

If you must stick with the term judicial activism, there is no way to have an independent judiciary in a changing world and not have judicial activism.

But when one side of a culture war brings out the term again and again it is trying to win a battle of public opinion. It is an effective tactic and it is a tactic of our present administration.


Actually I do agree with you on this point. Believe it or not, I was a strong Howard Dean supporter last year. I knocked on doors, made phone calls and worked the caucus site in Michigan. Needless to say I was extremely disappointed that the media latched on to the "scream" incident. We lost a candidate, who I believe actually had some integrity. In any case, my point is that the Republican party did take an opportunity when it saw it -- to latch onto the gay marriage issue. I post on a legal board and when the Goodridge decision came down, everyone couldn't contain how ecstatic they were. My view was entirely different. I saw it as a stupid move in an election year. The Mass. court was very politicized-- did you know that the date they chose to have their decision enforced corresponded to the anniversary of Brown v. Board of Education? If that wasn't some kind of political statement I don't know what is. In any case, the court dealt a deadly blow to the Democratic party's chance of defeating Bush-- and as you observe, that is exactly what happened.

You wrote about the Mass. decision:

Not a very persuasive case as depicted in the majority decision. I'll say this, if I was only attracted to members of my same sex I would definitely feel like a second class citizen if I were not able to marry the person of my choosing and create the legal rights that would allow my partner to have the rights in regards to my affairs and my dependents that my spouse was today. As a heterosexual I don't see procreation as being a defined part of marriage. I don't see a valid argument that says a hetero-sexual couple is better equipped to parent than a homosexual couple, and I have some great negative examples in mind to trot out in my defense, and if equality is at issue, then that trumps scarce State and private financial resources.

True. But my point is that the level of scrutiny that the court employed "rational basis" doesn't call for a real persuasive case. One of the dissents makes this point. If the court were being honest in its jurisprudence, it would have gone the whole nine yards and called the right to marry a "fundamental right"-- then as you point out, the State's asserted rationales could not have stood up. That is what is so bizarre about this case. The court gave lots of lip service to the federal cases that speak of fundamental rights-- but then it ignored them in its analysis. It hung its analysis on the "rational basis" level of scrutiny-- which usually only requires that the State puf forth some legitimate reason for its actions that is rationally related to the goals of the law being tested. Clearly the state's interest in providing a good setting for procreation is rationale (i.e. not absurd). The logic is that heterosexual couples have the potential to produce offspring-- in MOST cases the state should want to see that a child has two parents raising it-- so it is not absurd for the state to have an interest in marriage. You follow me? That is my gripe with the decision-- it said that this rationale from the state was ABSURD. Sorry, but history doesn't support that kind of analysis. I would have respected the decision much more if it had been consistent with normal precedent. It could have called the right to marry a fundamental right and then held the state's asserted rationale up to what is called "strict scrutiny"(instead of rational basis)-- i.e. the state must "narrowly tailor" (not rationally relate) its actions to further a "compelling state interest" (not just a legitimate one). I hope this doesn't sound like a bunch of legal gobbledy gook-- I am just trying to explain why their opinion overstepped its bounds.

You wrote:
A dissenting opinion begins like this

" What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights. [FN1] The power to regulate marriage lies with the Legislature, not with the judiciary. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent."


What I see here is an alarming twist of logic that says to me that the state legislatures so-called "power to effectuate social change" is more important than my civil liberties. I don't see a need for a legislature to effect social change short of guaranteeing individual rights and freedoms. So I see Brown v. Board as a good things, and Plessy v. Ferguson as a perversion of justice. I don't want my governments to be able to act "without interference from the courts." What is the interference from the courts here? Isn't it the Supreme Court carrying out in good faith its power of judicial review (concept set in place by an activist judge named John Marshall against states rights advocate Thomas Jefferson and the VA/KY resolutions?)

This may be where you and I fundamentally disagree. I believe that the only place that social change can be effected is in the hearts and minds of the people. Courts may or MAY NOT help along the "cause": In Plessy we got a civil war that followed; in Brown we got the civil rights act of 1964; and with Goodridge we got 11 state amendments banning gay marriage (and some even banning civil unions). Point is, court decisions are not the magic bullet. They may help a cause or they may set it back. The real work has to be done to win in the court of PUBLIC OPINION. And ultimately, that is the arena of the Legislature.

You wrote regarding my accusation of misrepresentation:

I didn't see a winning point in the quote from my source, others can recheck it on this thread. But you said something very different than we had an unprecedented (still unproven) amount of fighting recently over judicial nominees. You said the blocking of judicial nominees had never happened until the Democrats blocked Bork's nomination.

This is what you said and I proved that it was an untrue statement. And for my troubles you started with an above quote that claims that I misrepresented and painted an inaccurate picture of when the stalling (did you mean blocking?) of judicial nominees started.

Sorry, my bad on that one. I should have been more precise in my original point. Bork was the first time that a judicial nominee was blocked based purely on his judicial philosophy.

I don't think we are in disagreement on this point. The dissenting judge in the Massachusetts case called up the legislatures power to effect social change. I agree that the courts cannot make social change and I feel that laws should not be intended to lead social change. Activists should persuade people that their opinions and ideas are sound, that change should not be sought by fiat, decree, or law.

I take comfort that our Congress and our judiciary are sworn to defend our constitution and are by definition committed to protecting my civil liberties. In the area of checks and balances, when one fails in its duty the other can act to address it. And when the system fails we still have freedom of speech to be activists to persuade people that we are right in our opinion that the system has failed.

1. How would YOU define judicial activism?

I got your judicial activism !!! Now tell me this aint "judicial activism" or criminal behavior!

You want "judicial activism" stopped? Judge Donald L. Graham and his magistrate issued the following orders to an unrepresented Plaintiff in a civil lawsuit. The Defendants being referred to is the Highlands County Board of County Commissioners and other governmental agencies. You can't find an order like this nowhere is the written United States History.

Plaintiff shall be prohibited from contacting any of the [Government] Defendants, including their supervisory employees and/or the individual [Government] Defendants, regarding any matter related to this case. Plaintiff shall correspond only with Defendants' counsel. See .

Plaintiff shall correspond only with [Government] Defendants' counsel including any requests for public records.. .

Plaintiff shall be prohibited from contacting any of the named [Government] Defendants in this case, including their supervisory employees and/or the individual Defendants, who are parties in other actions (Fellin, St . Germain, etc .) and are represented by counsel in those other actions regarding any matter related to those cases since Plaintiff is not an attorney or the attorney of record for the plaintiffs in those other cases,....

Judge Graham ended up dismissing a lawsuit because an unrepresented Plaintff made public record's request to his government.

See .

See .


The "Court" or Judge Donald L. Graham granted these patently illegal motions.

See . ; .

These illegal orders have led to a massive amount of litigation. Additionally, these orders are but part of the misconduct of Judge Donald L. Graham.


I found some interesting links which will conclusively prove that the present system of judicial discipline is a joke. These links describe a well-known problem that needs to be addressed. There is no "judicial discipline" with respect to the federal judiciary and that is a terrible mistake. "Absolute <a href="power corrupts." Every other branch of government is subject to some type of discipline except federal judges.

Chief Justice William H. Rehnquist, who recently appointed a six member commission to study judicial discipline, knows full well that complaints of judicial misconduct are routinely dismissed and NEVER acted on, no matter how bad the alleged and proven misconduct is. Moreover, complaints [section 372©] are kept in total secret. Additionally, complaints of judicial misconduct lodged through the appellate process are ignored as well. Judges, or law clerks, give themselves permission not to publish cases, consequently acts of misconduct never reach the light of day. There is no effective way to discipline a rogue federal judge and everybody in the legal profession is keenly aware of this fact. If you want to see how bad the current system is, then read the links provided below. These links will demonstrate every thing that is wrong with the current system. Congressman Sensebrenner and his committee should look into this matter.

For really outrageous behavior, read the links below and the documents referenced by the links. Download the documents and save them.

These links generally discuss the misconduct of Judge Donald L. Graham
http://donaldlgraham.blogspot.com
http://secretlaw.com
http://secretlaw.com/NewComplaint/HelpLett...temptAbuse.html

These links discuss the efforts of the US Court of Appeal, Eleventh Circuit to conceal the misconduct.


http://mmason.freeshell.org/trickery/trickery.htm
http://mmason.freeshell.org/refusetodiscuss.html
http://mmason.freeshell.org/inherent/inherent.html



2. Is it inherently progressive, or are progressive expansions of rights merely a function of a more inclusive society?

3. Are those that rally against Judicial Activism ready to return to the days when schools could be segregated and your electronic or telephone communications aren't protected? Or are you just upset at the decisions that "liberal" judges are arriving at?

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1. How would YOU define judicial activism?
I would define judicial activism as interpretation of the law that was blatantly contradictory to the views of today's society. I emphasize today's society to shield myself from all the Dred Scott what if's. Example: Gay marriage, and for all those out there waiting to pounce, being black is different than being gay. One is immutable, the other is not.

Judicial activism would also encompass judges that interpret the law based on judicial opinion instead of legislative intent.

I would also throw in there that judicial activists make rulings based on feelings, emotions, or sympathies as opposed to facts and laws.
2. Is it inherently progressive, or are progressive expansions of rights merely a function of a more inclusive society?Our laws should reflect the state of our society, no matter how nefarious that state may be. A society should always progress and the legislation should reflect those changes. For those of you who want so badly to recall the Civil Rights Act or even the Emancipation Proclamation, I would warn you to understand that the changes in societies ideology brought forth that legislation, not a group of social vanguards.

3. Are those that rally against Judicial Activism ready to return to the days when schools could be segregated and your electronic or telephone communications aren't protected? Or are you just upset at the decisions that "liberal" judges are arriving at?These liberal judges are going against the tide of society. Gay marriage may one day be legal, but do not force that day, just let it happen. Understand the big picture of democracy will help you realize why political activism is counterproductive to societal balance. I want to finish my point but my g/f is angry about something, gotta go.

1. How would YOU define judicial activism?

That's when the court decides a case differently than you would like, and then uses some argument to support its decision.

Quotes from Madison, "The powewrs delegated to the federal government are few and defined...to be exercised principally on external objects,as war,peace, negotiation and foreign commerce". (Federalist #45) and "Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residual and inviolable soveriegnty over all other objects"(Federalist 39).

From Jefferson "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated".

Davy