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Salon Takes on Judicial Activism

By TChris, Section Judiciary
Posted on Sun Apr 10, 2005 at 08:31:52 PM EST
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by TChris

Sounding the alarm against right-wing attacks upon an independent judiciary -- attacks disguised as righteous reaction to judicial activism -- is this piece in Salon.

[T]he Schiavo case presents an opportunity to stem what conservatives frequently call an "out-of-control" judiciary. By "out of control," they mean out of their control; in the Schiavo case, after all, we saw two branches of the federal government succumb to the will of this savvy minority, while a third branch remained determinedly out of reach. Now that third branch is under attack. It is far from clear that the judiciary will survive unscathed.

Who are these activist judges?

The Schiavo case involved no apparent legislating from the bench. As Vikram Amar, a constitutional law professor at the University of California Hastings College of Law, notes, "The term 'activist' ceases to have any coherent meaning if it's applied to judges who stay out of things. Maybe you can call it a slothful judiciary, but not activist."

Conservatives are now criticizing all federal judges, not just "liberal" judges. More precisely, many are upset with the very idea that judges act as a check on the other branches of government.

To the extremists, a judicial activist is a judge who actively seeks to understand and follow the law.

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    • Salon Takes on Judicial Activism | 26 comments (26 topical)
    Re: Salon Takes on Judicial Activism (none / 0) (#1)
    by Talkleft Visitor on Sun Apr 10, 2005 at 08:59:25 PM EST
    To the extremists, a judicial activist is a judge who actively seeks to understand and follow the law.
    No. To the extremists (I think fundamentalists is a better word), a judicial activist is a judge who refuses to acknowledge the fundamentalists' religion as the true source of law.

    Re: Salon Takes on Judicial Activism (none / 0) (#2)
    by Talkleft Visitor on Sun Apr 10, 2005 at 10:06:44 PM EST
    One of the things you seem to forget is that the judiciary is equal to Congress (and the Executive) - not superior. With that in mind, I seem to recall more than one approving post here about impeaching Bush. If it's out of bounds to criticize the judiciary, isn't it out of bounds to criticize any other branch of government? Or is it simply the case that you dislike it when your ox is being gored? Judges aren't gods, and anyone - members of Congress included - can criticize them. Calling for impeachment isn't out of bounds either. Silly in most cases, probably. Out of bounds - no.

    Re: Salon Takes on Judicial Activism (none / 0) (#3)
    by Kitt on Sun Apr 10, 2005 at 10:06:53 PM EST
    I saw Jerry Falwell on Dan Abrams show some months back arguing about the type of law would teach at the law school Falwell is planning to open. Abrams was saying, Falwell’s school would have to teach “the law” - those that run the courts and our society. Falwell was saying the school would teach ‘biblical law’ - God's law. Falwell seemed at a loss to explain not only where these so-called attorneys would practice but how were they to be ‘licensed.’

    Re: Salon Takes on Judicial Activism (none / 0) (#4)
    by Talkleft Visitor on Sun Apr 10, 2005 at 10:12:37 PM EST
    The activist judge ignores genuine law and engenders his/her own. They see penumbras walking, they scorn the US Constitution and seek precedents from alien mores. When representative and democratic processes impede the progressive discharge, the activist judge expedites headway by edict. The vehemence of certain factions attests to the indispensable nature of such a power tool.

    Re: Salon Takes on Judicial Activism (none / 0) (#5)
    by Talkleft Visitor on Sun Apr 10, 2005 at 10:41:20 PM EST
    One of the pieces of irony I unhappily wait for is TL realizing what relying on "international law" for precedent means. TL was pleased as punch to see death penalty cases decided on that basis; TL will be "shocked, shocked" when free speech cases are decided on that basis. Those of us who are actually paying attention won't be surprised at all. Better to deal with the legislature - which can be voted out of office - than with judges who just "make stuff up" - whether the instinct to make stuff up is conservative or liberal.

    Re: Salon Takes on Judicial Activism (none / 0) (#6)
    by Talkleft Visitor on Sun Apr 10, 2005 at 10:52:07 PM EST
    I would argue that a recognition of international law and of the laws of other liberal democracies is perfectly inappropriate in situations where the U.S. is behind the curve in providing greater freedoms and protections. However, if the laws of another country are less protective of its citizens rights, like free speech, it's a point of pride to stand out in the crowd.

    Re: Salon Takes on Judicial Activism (none / 0) (#7)
    by Talkleft Visitor on Mon Apr 11, 2005 at 06:31:58 AM EST
    Justin, I'm presuming you meant "appropriate" where you typed "inapproriate" above (otherwise, I don't understand your comment). The trouble with your construction is that "behind the curve" on freedom and protections is completely subjective. There are plenty of people who want to stifle speech using those words; witness campaign finance "reform". Either the courts follow existing US law, or we have anarchy. When judges feel free to overturn legislative action on the basis of "international standards" rather than on the basis of US law, we stop living in a nation of laws, and instead end up in an autocracy ruled by judges. You may think that's ok so long as you like the decisions, but that's not a safe way to exist. This is one of the reasons I dislike Roe V. Wade - instead of a legislative end to the argument (which would have happened absent SCOTUS action), we've had 32 years (and counting) of angry, fringe led (both left and right) arguments over the issue. Each new judicial appointment has become a war as a result. I'd be far happier to see such issues decided by the legislature - they can get voted out if they do something at too wide a variance with public opinion. Judges can't be, and the process of impeachment is onerous.

    Re: Salon Takes on Judicial Activism (none / 0) (#8)
    by Talkleft Visitor on Mon Apr 11, 2005 at 08:15:56 AM EST
    James, You're right...I meant to say "perfectly appropriate." I actually have shared some of your concern about campaign finance reform (though probably not for all the same reasons); remember that it was bipartisan legislation (McCain-Feingold). There are obviously freedom of expression issues involved, and the courts have to take that into account--in fact they have been. As far as my criteria of opting for the cause of personal liberty--especially when the U.S. is something of a rogue state today when it comes to human rights--I'll grant you that it's subjective. Some might call it a conservative approach, but of course it bears little resemblance to the conservatism roaming the halls of the White House and Capitol Hill (with a few notable exceptions). Consider that the U.S. ranks with some of the most repressive regimes on earth in terms of the death penalty. It's not only a moral issue but a constitutional and policy question as well. Even if you salivate at the thought of a 16-year-old being executed, it's incontrovertible that errors are inevitable, and victims of the death penalty can't be released once they're dead. High Court opinions that go against the "will of the people" are standard fare, and that's part of the judiciary's function as an independent branch of government that can serve as a check on the others. Think about Brown v. Board of Education: the entire reason that the courts were ever involved was because of the overwhelming evidence that there would be no "legislative action" to provide equal educational facilities as long as schools were forcibly segregated by the state. The point is this: legislative action can take many forms, good or ill. It can be the vehicle of health care reform on the one hand or a campaign of persecution against particular groups on the other. Courts are just another filter among a whole hosts of filters designed in part to prevent the latter, but no less necessary.

    Re: Salon Takes on Judicial Activism (none / 0) (#9)
    by soccerdad on Mon Apr 11, 2005 at 09:22:23 AM EST
    Justice Kennedy asked during oral arguments last october, referring to most other countries banning Juvenile executions "Does that have a bearing on what is unusual?" So I think the question is legitimate. Does "unusual" refer only to what happens in the US or is there a "higer" (for lack of a better word) standard that applies to all mankind. In this particular instance the death penalty for juveniles has been outlawed by most countries on the planet. The reason the Bush regime and their apologists are so up in arms has to do with a bigger issue than this particular case. The far right and Bush are against and have assulted every organization, treaty, etc that would in anyway impinge on their freedom to what ever the hell they want. That is why they are against the UN, the ICC, international law, international treaties such as the NPT. To allow a different standard to be considered exposes their behavior to some real standard, and the evaluation is not always pretty. So in order to continue with torture, secret renditions, war based on lies it is crucial that all possible sources of standards of behavior that are contrary to their facists tendencies be discreditied. So the US judical system is just the latest target in an overall attack on all institutions and mechanisms that could curb this administrations goals and techniques. One has to look beyond the words and see the big picture. Put all their actions together to see what the real agenda is.

    Re: Salon Takes on Judicial Activism (none / 0) (#10)
    by kdog on Mon Apr 11, 2005 at 10:20:18 AM EST
    Who are these activist judges?
    Judges who put their oath to the law before any oaths to any boogeymen, or any political party hijacked by believers in boogeymen.

    Re: Salon Takes on Judicial Activism (none / 0) (#11)
    by Talkleft Visitor on Mon Apr 11, 2005 at 10:34:16 AM EST
    I think James R has the main point. The tightly split American political arena has led the left and the right to attempt to legislate by court judgement; this led to the fever pitch we have reached over judicial appointments. Judges need to show more restraint and greater "judgement" over when an issue is constitutional and when it is political - or the tug-of-war over judicial appointments will get crazier than it is (if that is possible)

    Re: Salon Takes on Judicial Activism (none / 0) (#12)
    by Talkleft Visitor on Mon Apr 11, 2005 at 10:47:47 AM EST
    Its pretty amazing how the soundbyte corporate media isn't capable of identifying overall trends, Soc. On the other hand, they're quite expert at giving America a distorted incomplete understanding of the checks and balances of our governments.

    Re: Salon Takes on Judicial Activism (none / 0) (#13)
    by Talkleft Visitor on Mon Apr 11, 2005 at 11:12:21 AM EST
    Soccerdad: There is a higher standard reflected in the world - but is that how you want the Supreme Court ruling? Most of the world has given up the death penalty period. Shouldn't the Supreme Court just have gone all the way? If your going to look at cultural/moral standards to base decisions on don't those have to be ours (good or bad) and shouldn't that be a political, not a judicial decision. Or if a couple of conservative presidents get a couple of supreme court appointments do you want their decisions based on their conception of a higher standard reflected by something other than our own countries political and social mores. Good for goose, good for gander

    Re: Salon Takes on Judicial Activism (none / 0) (#14)
    by soccerdad on Mon Apr 11, 2005 at 11:41:36 AM EST
    Fleetguy - In this specific case, isn't it a judical decision to decide what is "unusual". I think the worlds view of capital punishment in general is much different than the one for juvenile death penalty, so its in no way obvious that it could or should go further. I think this is in general being blown out of proportion by the right, although there are questions that deserve discussion. The decision was not based solely on the basis of other standards, but that is was a factor in deciding what unusual punishment is. And you are forgetting the context in which the right is pushing this issue.

    Re: Salon Takes on Judicial Activism (none / 0) (#15)
    by Talkleft Visitor on Mon Apr 11, 2005 at 12:03:49 PM EST
    Its the very context that makes this a slippery slope. There is a war on for control of the judiciary from the right and the left; and everybody is out to get everybodies little left and right knees a jerkin'. I am personally opposed to the death penalty on religious grounds - so what. We are probably on the same side in this issue. Some part of me would want the Supreme Court to say that God demands grace and mercy not retribution and revenge. You wouldn't like that court. If we were the only country in the world that executed anyone for any reason this would be a cultural/moral issue for our citizenry to debate and decide in the political arena. Or do we want the courts to be that political arena to an even greater extent. Incidentally, this will not play any better in the christian community than Schiavo did. There is no fundamentalist desire to see children killed.

    Re: Salon Takes on Judicial Activism (none / 0) (#16)
    by Sailor on Mon Apr 11, 2005 at 01:17:03 PM EST
    " Some part of me would want the Supreme Court to say that God demands ..." Which is why we want judges to uphold the constitution and not let religious extremists like yourself rule the country. "There is a war on for control of the judiciary from the right and the left" Yes, your side wants to reject the separation of church and state and institute a theocracy andthe left wants to uphold the constitution.

    Re: Salon Takes on Judicial Activism (none / 0) (#17)
    by Talkleft Visitor on Mon Apr 11, 2005 at 01:40:52 PM EST
    Sailor pay attention. I am saying the opposite. I do not want the court deciding that what we do is unusual anywhere but here - or by our countries beliefs; because later on if judges swing to the right you won't may not like their basis for making those decisions. The court needs to STOP making social/political decisions for the country; or you may get to roast on that same spit someday.

    Re: Salon Takes on Judicial Activism (none / 0) (#18)
    by Sailor on Mon Apr 11, 2005 at 02:34:21 PM EST
    JCHFleetguy, sorry for misinterpreting your post. "The court needs to STOP making social/political decisions for the country" What choice do they have when the cases end up in court? The congress and state legislatures constantly make social and political decisions, which are then challenged in court and the court decides the constitutionality of the law. When the elected reps don't like the decision, they rewrite the law to try to pass muster. This is the system, it protects you and me, and it's not a bad design all in all. The phrase 'cruel and unusual' is meant to be interpreted by the court and society's current mores. The supremes listed, in order of precedence, what they each relied on to make the state sanctioned killing of children unconstitutional. That order was: 1)trend in states themselves in outlawing this practice, 2)public opinion, 3)medical evidence that the kid's brains don't function the same way as adults, and 4) international law. The rw is cherry picking the last and least reason as their talking point to activate their base of hate.

    Re: Salon Takes on Judicial Activism (none / 0) (#19)
    by Talkleft Visitor on Mon Apr 11, 2005 at 03:02:25 PM EST
    You know that all sounds good BUT I think the left and the right have become lazy. It is easier to trundle off and file a suit with a judge that agrees with you than it is to battle in 50 state legislations or the Congress to make changes in the law. The Court could have said that this was a matter for the state's or Congress to decide - but I really believe that the justice's did what they thought was right, not necessarily correct. I like people who vote their conscience; and I think the death penalty is wrong - so what the hell? Somehow it feels like pouring gasoline on a fire. Let the arm wrestling continue.

    Re: Salon Takes on Judicial Activism (none / 0) (#20)
    by Talkleft Visitor on Mon Apr 11, 2005 at 03:10:02 PM EST
    Or is it simply the case that you dislike it when your ox is being gored?
    There's a difference between calling for the impeachment of any individual and advocating the elimination of the separation of powers. As the Salon.com article made clear, these particular extremists aren't just seeking the impeachment of a single justice (Kennedy). Their real goal is to make the judiciary subservient to Congress and the President. So, no, it's not about whose ox is being gored. It's about the survival of democracy.

    Re: Salon Takes on Judicial Activism (none / 0) (#21)
    by Talkleft Visitor on Mon Apr 11, 2005 at 03:13:15 PM EST
    Oh and Sailor The point they cherry picked has a big pit in it re: the right's christian base - my band of fellow travelor's thought the whole Schiavo thing a travesty - and the death penalty for anyone is indefensible from a scriptual standpoint. All extremists tend to be self-destructive. Good example here

    Re: Salon Takes on Judicial Activism (none / 0) (#22)
    by Sailor on Mon Apr 11, 2005 at 06:26:13 PM EST
    " It is easier to trundle off and file a suit with a judge that agrees with you" You can't pick a judge that agrees with you, and even if you could his decision is subject to review by higher courts. Do you really think you are a part of " the right's christian base" ? The right's christian base is jerry "blame the pagans, and the abortionists, and the feminists, and the gays and lesbians for the September 11" falwell, fred "god hates fags"phelps, randall "Judicial Decrees Are Not The Rule of Law" terry . I have never heard any evangelical denounce these people. These rabid bellowers of beliefs that are the opposite of what jesus taught are the right's christian base. Do you really want to be in their company? "All extremists tend to be self-destructive. Good example here" Except they aren't the extreme of the rw, they are the base. You might disagree with a lot of judicial decisions, I do, but that is the system we have. If it didn't pi$$ us both off it wouldn't be working;-)

    Re: Salon Takes on Judicial Activism (none / 0) (#23)
    by Talkleft Visitor on Mon Apr 11, 2005 at 06:39:13 PM EST
    lol probably true look demagogues always find the microphone. I do not denounce Jerry Falwell because he is irrelvant to my world; and i dont even know who Randall Terry and Jerry Phelps are. Yes, I am part of that fundamental, born-again christian group that Democrats give to Bush. As Ive said, Im one of the more left wing versions - but almost everyone in my bible study voted for Bush; probably as much as a knee jerk reaction to abortion and some other social issues as any true political agreement. Understand that your ability to talk to me is not an aberation - just that we started talking. There is a political point there. Those that speak for believers like me DONT they have just found some trigger points

    Re: Salon Takes on Judicial Activism (none / 0) (#24)
    by Sailor on Mon Apr 11, 2005 at 07:04:03 PM EST
    JCHFleetguy, we probably have more in common than either of us would like to admit. You have a couple of key issues that convinces you to back the rw. falwell, terry and FRED phelps are the ones who get face time in your faith's name. If you and yours can refute their extremism, you would have a much better chance at credibility in the national discourse.

    Re: Salon Takes on Judicial Activism (none / 0) (#25)
    by Talkleft Visitor on Mon Apr 11, 2005 at 07:43:55 PM EST
    fleetguy wrote I think the left and the right have become lazy. It is easier to trundle off and file a suit with a judge that agrees with you than it is to battle in 50 state legislations or the Congress to make changes in the law. I am going out on a limb and guessing you don't work in the law. Just trundle off to the Supreme Court with your case. Hmmm... what could be easier?

    Re: Salon Takes on Judicial Activism (none / 0) (#26)
    by Talkleft Visitor on Mon Apr 11, 2005 at 10:15:21 PM EST
    conscious I do not work in the law but know most a good chunk of the social issue (not criminal) cases that end up in the SC start out as restraining orders at the District Court level - and people can chose which court to file in - especially since they are often filed by national organizations that can pick where to start their battles. People picked the 9th (??) circuit to file the "one nation under god" challenge intentionally (i am right about that correct) because they expected a positive ruling there. I may be oversimplistic, but not way off base.

    Salon Takes on Judicial Activism | 26 comments (26 topical)