Activist Judges

[Lemur]

There's been a lot of talk about activist judges, but it doesn't seem there's much agreement on what "activist" means. Obviously, a judge who rules in my favor is impartial and thorough, while a judge who rules against me is activist and unelected. But is there more to it than that?

I just ran across a study (again, it's only in print, but there's a much-abbreviated version online here, which omits most of the actual number breakdowns -- weird) that uses some basic metrics to observe "activism."

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

So they're not measuring what people voted against, or whether they carried the day -- they're just measuring how often a judge voted to strike down Congressional legislation since 1994. This is not a measure of how conservative or liberal a justice is, just how they react when ruling on legislation created by an elected body. The numbers:

Thomas -- 65.63%
Kennedy -- 64.06%
Scalia -- 56.25%
Rehnquist -- 46.88%
O'Connor -- 46.77%
Souter -- 42.19%
Stevens -- 39.34%
Ginsburg -- 39.06%
Breyer -- 28.13%

Again, this is not a measure of anything except how often these justices rule to strike down Congressional legislation. If you want to read more into it, that's your right, but this Lemur finds the raw data interesting all by itself. Who knew that Judge Thomas was the most likely to invalidate a Congressional law? Who knew that Breyer was least likely? I would never have gleaned that from listening to the talking heads on cable news.

[Don Corleone]

Maybe if you posted a similar study showing how many times a judge voted to expand the powers of government versus voting against it, you might get some insight into what we're talking about.

[scooter_the_shooter]

I think judges should follow what the constitution says and nothing else.

[Gawain of Orkeny]

I think judges should follow what the constitution says and nothing else.

Thats pretty much it but for some reason liberals seem to have a hard time realising thats the job their supposed to do just as they dont understand its the presidents job not theirs to nominate these judges. Ive heard the analogy that supooose you left a will and left 50 thousand dollars to Sam. An activist judge would rule hey he dont put it in there but I know he would of wanted 10k of that to go to Jim. Just read whats there .

[Lemur]

Maybe if you posted a similar study showing how many times a judge voted to expand the powers of government versus voting against it, you might get some insight into what we're talking about.

If you can find such a study, I'd be more than happy to have a look. No thoughts on this report?

[Don Corleone]

Well, I don't define activism as having a difference with Congress, necessarily. Example, nothing in the Constitution grants Congress the right to regulate medicinal marijuana. Yet, those justices who voted in favor of California's medical marijuana law, if we accept your definition of activism, would be considered activist, as they sided with the California state assembly over Congress and the executive branch.

My definition of activist follows more along the lines of what Gawain & Ceasar have said: whether they take a strict interpretation of the Constitution or they take a flexible interpretation of it.

[Xiahou]

I pretty much agree. While it is an interesting statistic, I dont think it has much relevance when talking about judicial activism or 'legislating from the bench' as I often call it.

[ichi]

they're just measuring how often a judge voted to strike down Congressional legislation

which, when done by anyone opposing the current Republican combo of President and The Congress, is considered 'legislating from the bench' or judicial activism by the neoright.

My point from previous threads is still valid. It is a responsibility of the courts to ensure that laws are consistent with the Constitution.

The fact that conservatives vote their conscience on their interpretation of the Constitution as it applies to laws they are reviewing neither surprises nor offends me, as it is their task.

What gets me is that when the votes don't go the way a particular idealogical group wants, how they start to howl.

But those who want to be convinced that the left is legislating from the bench aren't about to let facts get in the way of good story.

ichi

[Gawain of Orkeny]

My point from previous threads is still valid. It is a responsibility of the courts to ensure that laws are consistent with the Constitution.

No itd not. It dosent say that in the constitution. Taking this power upon themselves was the first imstance of judicial activism. Even then they are only supposed to rule on it not enoforce or as you say ensure its consistent with the constitution. If thats their job their doing a mighty poor job of it or maybe you could show me how the ruling on private property is consistant with the constitution.

The fact that conservatives vote their conscience on their interpretation of the Constitution as it applies to laws they are reviewing neither surprises nor offends me, as it is their task.

We dont want them voting their concious we want them voting on what the constitution says on the matter not their interpretation of it.

What gets me is that when the votes don't go the way a particular idealogical group wants, how they start to howl.

We only howl when they clearly overide both the people and the constitution.

But those who want to be convinced that the left is legislating from the bench aren't about to let facts get in the way of good story.

You havent given any facts.

[bmolsson]

Judges should not be politicall active. Neither should they be appointed politically. The judges are probably the most important group in a democratic society...

[ichi]

We dont want them voting their concious we want them voting on what the constitution says on the matter not their interpretation of it.

In order to vote on what the Constitution says, it is necessary to interpret the meaning as it applies to specific cases. Any argument to the contrary is an exercise in semantics.

and the numbers show that conservatives, as well as liberals, make rulings that oppose legislative power. This is a necessary check on popular power, opposing mob rule or politicians pandering the perceived cause du jour.

You havent given any facts.

The facts at the top of this thread speak volumes

ichi

[Gawain of Orkeny]

and the numbers show that conservatives, as well as liberals, make rulings that oppose legislative power. This is a necessary check on popular power, opposing mob rule or politicians pandering the perceived cause du jour.

I said that go against the people and the constitution. Two good examples again are the new ruling on private property and Rove vs Wade. You have to be pretty far out to interpret the constitution to back either of these positions. In the case of the conservtives over ruling things , those were clearly unconstitutional. Im willing to defend any of their decisions but lets see you defend the two I just mentioned. Man you ran from the battlefield straight to here didnt you.

[Kanamori]

In order to vote on what the Constitution says, it is necessary to interpret the meaning as it applies to specific cases.

This is true, but where are they given the ultimate power, i.e. where are they given the privelege of being the final authority on what the constitution says? By giving themselves the power, they superceded the contract, and they made themselves the final arbiters. In effect, they placed themselves above the Constitution by giving themselves the right to interpret it at will, and be the final source on that interpretation and the aboloshing of the law that may follow the interpretation. Nowhere in the Constitution is any final arbiter mentioned in regards to interpreting itself. Please believe me, I understand your thought process, and I understand where my logic failed. But, it was something I had to "get" myself.

[ichi]

Man you ran from the battlefield straight to here didnt you.

the damn game went buggy and I had to restart my comp, by the time I returned all were gone.

Im willing to defend any of their decisions but lets see you defend the two I just mentioned.

Fortunately I don't have to defend anything except my own opinions, and I have serious concerns about the private property case. It seems that the primary foundation of our social contract, the right to own property, has been subverted.

As far as Roe v Wade, my postion has always been that the Constitution does not give the State the power to tell a woman that she has to carry a fetus to term. It is not a proper use of State power.

Nowhere in the Constitution is any final arbiter mentioned in regards to interpreting itself.

WE just went through this in another thread last month, and (IIRC) Article 3 does contain language giving power to the courts to review law. I for one am glad that some check on popular whim has become institutionalized in a body that is selected by elected officials, but not directly beholden to the majority. Its one of the things that has made this country great.

ichi

[Gawain of Orkeny]

WE just went through this in another thread last month, and (IIRC) Article 3 does contain language giving power to the courts to review law.

Well proffesor enlighten us all as to how this gives them the final say? In fact it doesnt. The very opening lines say

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

It says its up to congress to even establish what the supreme court is. I dont think there were always 9 members. Congress sets the standards. Like I said this is the first instance of judicial activism and made all the rest possible.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

[Lemur]

I spent some time (okay, ten minutes) trying to find a more detailed breakdown of the votes by this court, starting in 1994 when there was the last change in the lineup. Lots and lots of opinion pieces, but I couldn't find anybody breaking it down by issues.

Don C, are you aware of any such studies? For instance, if I want to see how often the individual justices voted to expand or limit Federal power, do you know of a place where I can see the actual numbers? You mentioned it earlier in the thread, so I'm sort of hoping you have some resources.

[edit]

P.S.: Does anybody like their recent expansion of eminent domain? Anybody at all?

[Xiahou]

But those who want to be convinced that the left is legislating from the bench aren't about to let facts get in the way of good story.

ichi

Well, lets have some facts then, and let them get in the way. Find us some modern example of when you think the SCOTUS, acting from a conservative bias, made rulings that werent consistent with the Constitution. I'd love to hear them.