Activist Judges

[Coyote]

So....what are "activist judges"? How do you define it? It's a term that gets thrown about a whole lot.

Paul Gewirtz andChad Golder attempted to create an objective standard of measurement by asking the question: How often has each justice voted to strike down a law passed by Congress?

Interestingly...they came up with the following results:

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 %


In addition, according to: In Defense of Judicial Activism: D.C. v. Heller and the failures of conservative judicial restraint - Reason Magazine

So it's no small matter that one of the country's most prominent conservative judges is now criticizing Scalia for being a judicial activist. In a provocative new article forthcoming from the Virginia Law Review, federal appeals court Judge J. Harvie Wilkinson III surveys Scalia's recent handiwork in the landmark gun rights case D.C. v. Heller (2008) and finds it seriously lacking. "Heller," Wilkinson writes, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

Looks like we have a bunch of conservative activist judges on the court....

Another attempt to define "judicial activism": Have you ever been a "judicial activist"? looks at the following criteria:

Striking down arguably constitutional laws
Ignoring judicial precedent
Judicial “legislation.”
Employing an illegitimate method of interpretation


So...who are these "activist" judges that the the rightwing so often seem to scream about?

 

[Coloradomtnman]

Hmmmm. I think they're just judges with whose opinions rightwingers don't agree. I think its just a nice term to throw around during election time. Yeah, that's pretty much it.

 

[George Costanza]

"Activist judges" is an offshoot of "strict constructionism" - two conservative code phrases for "we want it OUR way."

 

[alan1]

Voting to strike down a law passed by congress is not in and of itself activism. If the law is unconstitutional, then the Supreme Court is supposed to strike it down, that's their job.

 

[Coyote]

Voting to strike down a law passed by congress is not in and of itself activism. If the law is unconstitutional, then the Supreme Court is supposed to strike it down, that's their job.

But if it's done excessively?

The article I referred to put it into context as follows:

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

 

[Oddball]

Voting to strike down a law passed by congress is not in and of itself activism. If the law is unconstitutional, then the Supreme Court is supposed to strike it down, that's their job.

But if it's done excessively?

The article I referred to put it into context as follows:

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Well, I'd say that congress has been legislating excessively the last several decades.

Could've used a little of that "judicial activism" in the Kelo case.

 

[Citizen]

Voting to strike down a law passed by congress is not in and of itself activism. If the law is unconstitutional, then the Supreme Court is supposed to strike it down, that's their job.

But if it's done excessively?

The article I referred to put it into context as follows:

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

The Constitution clearly limits the powers of Congress, so anytime they overstep their constitutional bounds it is the responsibility of the Supreme Court to invalidate their actions.

Also the Constitution clearly spells out the powers granted Congress in Article 1, Section 8, while Article 1, Section 10 spells out the powers frobidden to the States, and the 10th Amendment clearly states that "The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the states respectively, or to the people."

Just in case anyone is not familiar with the powers granted to Congress, they are as follows:

The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and foreign coin, and fix the standard of weights and measures;

To provide for punishment of counterfeiting the securities and current coin of the United States;

To establish Post Offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and rebel invasions;

To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Clearly the Federal Government was established as a very limited one, and if any additional powers were required, Article 5 spells out the way to Amend the Constitution to obtain them.

Without an Amendment giving Congress additional powers, they must be held to those granted them by the Constituion, and any other powers they attempt to claim is clearly in violation of the US Constituion.