Judicial Activism and Its Cure
What is judicial activism? One commentor pointed out that most people define judicial activism to be any court decision they don't like; conversely, any outcome they do like is simply great jurisprudence, no matter how far beyond its authority a court might stray to reach that outcome.
Better understood, judicial activism means courts stepping beyond their authority to interpret the law, in order to actually make law.
Law-making should occur in legislative bodies, not courts, because legislative bodies give voice to the people. The public can attend hearings, provide input, and lobby for a particular result. Also, importantly, if the people don't like the result a legislative body reaches, the people can vote and work to remove the offending lawmakers. This places decision-making authority with the people, not unelected, unreachable judges.
Yesterday, a New York Court provided a great example of judicial restraint. The Court handed down an opinion in a case where Plaintiffs asked the court to smack some power companies for allegedly contributing to global warming. Even after assuming that the Plaintiffs' allegations were correct, the Court ruled that Plaintiffs were raising questions that should be determined in the open, political arena. Bravo! Great example of judicial restraint. Does this mean the court is all for global warming, as many would charge? No, it means the court believes in constitutional government and the people's ability to influence policy.
It would be nice, if more courts shared the sentiment. But what if they don't? While courts steal power from the people, are the people and lawmakers forced to sit idly by, gripe and wring their hands? No, not at all. Constitutions aren't intended to work that way.
Lawmakers control purse strings. If lawmakers were to show that they consistently cared about the people's ability to affect policy, courts would come in line. If lawmakers noted and responded every time a court handed down utterly stupid decisions (like the Pledge of Allegiance decision), if lawmakers cut funds to consistently bad circuits (like the 9th), and if lawmakers otherwise asserted the specific control they have over courts (for example, ALL lower courts in the federal system), courts would be more restrained. Judges would carp about it -- just like members of the other two branches do when they are checked -- but matters would improve.
Why, then, doesn't Congress assert itself, in order to get courts in line? Because Congress doesn't care. This was clearly illustrated in this sorry debacle. There, the two most-senior members of the Senate Judiciary Committee asked the Supreme Court to make law in the copyright arena, despite the fact that the Constitution specifically says Congress will make such laws. Why would they do that? Because Congress refused to pass the copyright bill they were co-sponsoring to address the issue.
So, yes, as the commentor mentioned, many people -- including those who really should know better and should do better -- define judicial activism in terms of outcome, rather than process. If the people respect their ability to participate in policy making, they should demand more.
UPDATE (night): A commentor on the last post linked to this. Please check it out and ask yourself whether you want more of what you've got the last 29 years. Ya, Judge Karlton is an activist; so, shouldn't something be done about it? Utah, how about electing a senator who won't ask the Supreme Court to pass his legislation and who will do more than merely gripe about judicial activism? It's time for change.
Better understood, judicial activism means courts stepping beyond their authority to interpret the law, in order to actually make law.
Law-making should occur in legislative bodies, not courts, because legislative bodies give voice to the people. The public can attend hearings, provide input, and lobby for a particular result. Also, importantly, if the people don't like the result a legislative body reaches, the people can vote and work to remove the offending lawmakers. This places decision-making authority with the people, not unelected, unreachable judges.
Yesterday, a New York Court provided a great example of judicial restraint. The Court handed down an opinion in a case where Plaintiffs asked the court to smack some power companies for allegedly contributing to global warming. Even after assuming that the Plaintiffs' allegations were correct, the Court ruled that Plaintiffs were raising questions that should be determined in the open, political arena. Bravo! Great example of judicial restraint. Does this mean the court is all for global warming, as many would charge? No, it means the court believes in constitutional government and the people's ability to influence policy.
It would be nice, if more courts shared the sentiment. But what if they don't? While courts steal power from the people, are the people and lawmakers forced to sit idly by, gripe and wring their hands? No, not at all. Constitutions aren't intended to work that way.
Lawmakers control purse strings. If lawmakers were to show that they consistently cared about the people's ability to affect policy, courts would come in line. If lawmakers noted and responded every time a court handed down utterly stupid decisions (like the Pledge of Allegiance decision), if lawmakers cut funds to consistently bad circuits (like the 9th), and if lawmakers otherwise asserted the specific control they have over courts (for example, ALL lower courts in the federal system), courts would be more restrained. Judges would carp about it -- just like members of the other two branches do when they are checked -- but matters would improve.
Why, then, doesn't Congress assert itself, in order to get courts in line? Because Congress doesn't care. This was clearly illustrated in this sorry debacle. There, the two most-senior members of the Senate Judiciary Committee asked the Supreme Court to make law in the copyright arena, despite the fact that the Constitution specifically says Congress will make such laws. Why would they do that? Because Congress refused to pass the copyright bill they were co-sponsoring to address the issue.
So, yes, as the commentor mentioned, many people -- including those who really should know better and should do better -- define judicial activism in terms of outcome, rather than process. If the people respect their ability to participate in policy making, they should demand more.
UPDATE (night): A commentor on the last post linked to this. Please check it out and ask yourself whether you want more of what you've got the last 29 years. Ya, Judge Karlton is an activist; so, shouldn't something be done about it? Utah, how about electing a senator who won't ask the Supreme Court to pass his legislation and who will do more than merely gripe about judicial activism? It's time for change.
posted by steve u. at 9/16/2005
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17 Comments:
Nice thoughts Steve. Your piece makes a strong case for what most people sense: that too much time in DC makes people forget basic principles of government.
It drove me nuts, watching the Roberts confirmation hearings, how the Kennedy-Biden-Schumer-Feinstein wing of the committee badgered the nominee for definitive answers to how he would rule on specific policy issues. To my mind this reveals a shockingly unprincipled view of how our system of justice ought to work. When parties bring a case or controversy before the court, judges should not approach the case with a preconceived outcome based on some political policy preference. It is not a judge's job to impose liberal or conservative policies on the nation. It is the job of the elected branches - answerable to the people - to decide and institute policy. A good judge sets aside his political policy opinions - for instance, Scalia's stated personal view that flag burning is abhorrent and people who do it are low-lifes - and rule instead according to a principled interpretation of the law and constitution - as Scalia did in striking down legislation outlawing flag burning. A good judge will disappoint from time to time both liberals and conservatives. I was bothered by the Senators on the committee who seemed to think the measure of a good judge is whether the judge will implement policies with which the Senators approve.
Good observations, Charley. The confirmation process should get at whether a judge is restrained or an activist. In other words, does he believe judges or the people, through their elected representatives, should make laws? This breaks down, because leading senators don't have a problem with activism; they just want to make sure the judges usurp the people's democratic prerogatives in a certain direction.
Interesting responses. However, one wonders why the Bushco would desire to pick judges that would clearly overturn Roe-v-Wade. You all describe these "activist judges" as ones who determine policy rather than focus on the constituionality of laws. Yet you desire to put in judges that will overturn current law (Judges who will determine constitutionality based on their conservative view of the law) and reverse previous rulings...all in the guise of ending judicial activism.
Lets try to look at analogy:
1. A law is deemed constitutional.
2. This law tends to favor conservative policy.
3. A space becomes available on the S. court.
4. A progressive president seeks to fill spot with progressive judge
5. Purpose is to alter view of constitutionality of law.
Wouldn't you say this is what Bush is doing?
Isn't this really about changing the law to meet your agenda?
What makes current judges activist, but when your desired justice actively seeks to alter a current law, that would be considered passive??
Wasn't the attempt to coerce judges (with threats of violence) for the purpose of altering a present law...i.e., Schaivo, where the Republicans in congress wanted to create a law for ONE person. This is against current law!!
Charley...you said
"When parties bring a case or controversy before the court, judges should not approach the case with a preconceived outcome based on some political policy preference. It is not a judge's job to impose liberal or conservative policies on the nation."
PULEEZE...Tell me honestly that you believe that the choice of Roberts isn't specifically to add conservative power to the bench. Lets not let our incredulity get in the way of reality. We also know that judges are human, and will likely occasionally determine cases based on emotional content, particularly when they have strong feelings about the case. The one example of Scalia is cute, but that's one example. Last point...why did the Republican majority in congress deny so many of Clinton's nominees? Could all of them been so unprincipled, or was it more likely that the Repub's didn't want "progressive-leaning" judges?
Fact is, that the president gets to choose, and more often than not get their guy (or woman). But lets not try to act holier than thou and claim no agenda.
And Steve,
Since there is an active and absolute majority of people in America who want Roe-v-Wade to remain (probably in the area of 65%), what would be usurped? Legislators make laws, judges only determine their constitutionality.
The distinction between judicial activism and judicial restraint is not some ploy to distract from what is "really" just a fight over conservative vs. liberal judges. Activist judges can be liberal or conservative. During the Lochner era, it was an arguably conservative activist Court that regularly struck down New Deal programs. Striking down state laws regulating abortion is arguably liberal activism. Activist judges impose their view of what is the social good - whether that view of the social good is unfettered markets or the right to an abortion or the right of gays to marry.
Judicial restraint, on the other hand, defers questions of social policy to legislatures - when the legislature has not acted contrary to a reasonable interpretation of the text and structure of the Constitution. The judge practicing restraint will defer to the legislature when the legislature is on sound constitutional grounds even if the judge disagrees with - hates, even - the social policy advanced by the legislation he upholds.
So, taking Doc's example of Roe, a judge who would defer to the states on such a question of social policy does not impose his view of the social good on society. Such a judge might be pro-abortion or anti-abortion. We wouldn't necessarily know. In fact, his views on abortion are irrelevant. It is to his mind the legislature's problem what is sound social policy concerning abortion - and it is the legislature who must face the consequences of its choice when the electorate goes to the polls.
It seems as if judges only promote liberal causes, then they are activist judges, but if they only promote conservative causes, they are not.
farmerbrown: Is this your view? I thought charley foster made it clear that it is not a liberal/conservative distinction--he cited probable conservative activist judges during the New Deal-- but a restraint out of respect for the proper sphere to make social policy--the legislature, where reps can be voted out.
And where there can be open/public discussion and debate about the issue.
Steve, thank you for your thoughts on Congress actually doing its job and implementing some checks and balances on the judiciary. I believe you are correct when you state the if Congress had been doing this all along we wouldn't have had such problems with our judiciary. A lot of good Hatch's tenure of the Senate Judicary Committee has done us.
Thanks to all for the good discussion. Doc asks what is being usurped by Roe v. Wade, since, according to him, 65% of the people agree with it.
As I stated, people's constitutionally-guaranteed right to participate in democratic process is being usurped. To some of us, that means a lot.
It seems to me that Doc's question should be turned around. If abortion advocates believe that the nation is with them on the issue, why are they so insistent that it be hidden from democratic process?
If 65% of the people are with them, they could win at the state level or even pass a constitutional amendment to actually put the right in the Constitution, instead of conjure it out of the document's shadows. Why won't they? Because, in my opinion, they know the judicially-created standards in Roe v. Wade could not withstand the public scrutiny of democratic process in most of America.
I'm not sure that I understand what you mean when you say that abortion advocates want the topic hidden from the democratic process. If you mean that a clearly conservative judge should be 'rubber-stamped' into the supreme court to allow him to make changes commensurate with his ideological bent, then I understand completely. To you, the democratic process is approval without question. I always thought the process that is occuring right now was the democratic process. A true democratic process might be to put the topic to public referendum. That would be quite interesting!!
Steve, how are the people's constitutionally-guaranteed right to participate in democratic process is being usurped? Is it by arguing against the approval of judge Roberts? Has he become the poster-child for the democratic process?
What decision of the supreme court was "conjured out of the document's shadows"? Are you trying to say that if abortion was made illegal again that the decision would then be "following the 'true' meaning of the constitution"? How obviously biased and conservative your perceptions are.
If the decision is pro-abortion, then the process is faulty, if the decision is anti-abortion, then the process is fixed.
YIKES!
I must apologize. I don't mean to be disrespectful. I am no legal brain, nor am I wise enough to determine just what judicially created standards were set forth by the court decision in Roe-v-Wade that you are talking about??
BEN made some good points, and tries to be "reasonable". However, I think it's rather naive to believe that any nominee is chosen because of their freedom from ideology.
Doc, aim before you fire. My position is simple. Courts should not set abortion policy -- in any direction. Such issues should be decided by the people or by their elected representatives. In that open battle, your position might win or my position might win, but, regardless, representative democracy will win.
And, though you don't realize it, you argue against Roe v. Wade. In that decision, the Supreme Court shot down your idea about a referendum. In Roe, the Supreme Court said it didn't care what you think or what I think or what the American people think about abortion. A handful of justices took it upon themselves to establish the standards. Where would you argue they got the right to do that?
Doc reasonably asks, "What decision of the supreme court was 'conjured out of the document's shadows'?" That would be Griswold v. Connecticut in which Justice Douglas - conjuring a generalized right to privacy that doesn't exist anywhere in the actual text of the constitution - reasons that, "specicific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."
Thus from the shadows of the document the generalized 'right of privacy' was conjured in 1965. It has since been pulled and stretched to accommodate whatever policy an activist jurist has in mind to endow with constitutional protection from democratic influences. In the Roe decision it was specifically invoked to support the creation of a constitutional right to abortion.
I understand Doc's suspicion that complaints about judicial activism are really complaints about liberal judges. Sometimes they are. But that does not mean there are no principled objections to judicial activism regardless of its stripe. It isn't the objection to the confirmation of Judge Roberts that represents a usurpation of democratic participation. The usurpation is achieved by this style of judging by which policy outcomes determine the reasoning and the standards, rather than the text of the document determining the outcome.
Steve,
I agree...such issues should be decided by the people. What I don't understand is how a majority of Americans can be pro-abortion (at least in some form), yet the conservative base (a clear minority) demand a change in the law. It sounds more like an issue of control than an issue of choice.
A representative democracy? I guess that is the description of our republic. We both know that America is not a true democracy, otherwise the people would vote for or against every law. But somehow, with all the polls out there that say "staying the course isn't working and we want change" our representatives aren't quite following through with their duty. When '06 comes around, you watch how many will pay with their jobs. The party-line votes show how divided the country is at this time.
You are right, I will have to look up the r-v-w decision to see how the courts created the law rather than define what the law intended.
Again, I apologize if I've been disrespectful...just disgusted!!
Alan
It seems to me that the president's search for a non-activist judge is not simply a ruse to sneak a conservative judge past the Senate.
I think it is more likely a way for Bush to nominate moderate Judges without raising the angst of the Conservatives.
There's a large number of Conservatives who want a Bible thumping activist Judge set to interpretting the Constitution and Ten Commandments the way that God intended when He revealed them (dagnabbit).
I suspect that much of the talk about activist judges is to appease the right and to allow Bush to appoint moderate Judges.
As for the distinction between activism and nonactivism. That usually has more to do with how Judges feel about precedence than it does with the Judge's relation to the legislature. A judge that over turns precedences is activist.
Western law pretty much grew out of the tradition of natural law. Natural Law evolved over time through a series of precedences.
I personally think that Bush really is sincerely seeking a nonactivist judge. I also suspect that much of the rancor we see today is simply that of liberals projecting their own methodologies on Bush.
charley said: "judges should not approach the case with a preconceived [...] It is the job of the elected branches - answerable to the people - to decide and institute policy."
I disagree here. The primary goal of the Supreme Court is to judge the laws. The Supreme Court starts with the biggest preconceived notion of all times: A Constitution. A nonactivist Supreme Court judge would be loath to change the current interpretations of the Constitution. So, if a law was considered unconstitutional in 1973, a non-activist judge would consider it unconstitutional today.
Yes, it is true that activist judges are eager to put their imprint on legislation. A nonactivist judge would not be seeking to put an imprint of legislation, but would not role over for the Legislature either.
The question of undoing the actions of a previous activist judge is very interesting. Does undoing the actions of an activist make one an activist? I think that would depend largely on how far a field the activist judge ran.
Of course, we will not know if Roberts is an activist or nonactivist judge until after he has been in office awhile. The history of the court is that Judges often turn out different than the presidents who nominated the judge expected.
Thanks for the good discussion, all. Did we figure it out? Kevin, I believe this is your first comment. Welcome, and please pay us a visit from time to time.
Supreme Court Justices are nominated by the President, then voted on by the Congress. That's your power on the Court; the Court should also have powers.
One way or another, the Courts decide on a case-that will have a big impact. It will overturn or maintain a state law.
If we waited for amendments, the minority populations would get trampled on. Even minorities deserve rights. The government is partially to defend those who can't defend themselves.
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