Defining Judicial Activism

by TChris

Right wing extremists love to label any judge who declines to vote their way as an "activist" judge. In their parlance, even a judge who declines to take action -- a judge who refuses to change the law to keep Terri Schiavo alive, against her wishes -- can be an "activist."

Prof. Paul Gewirtz explodes the myth that liberal judges are "activists." Using a reasonable definition of the term -- an "activist" judge is a judge who votes to strike down a law enacted by Congress (defying democracy, in the words of the extremists) -- Prof. Gewirtz identifies the activists on the current Supreme Court. Justice Thomas comes out on top, followed by Justices Kennedy, Scalia, and Rehnquist.

The president has suggested that a follower of the Scalia philosophy of judging would make a great choice for the Court. Extremists beware: your president wants to put another activist on the bench!

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    Re: Defining Judicial Activism (none / 0) (#1)
    by Pete Guither on Sat Dec 17, 2005 at 01:00:53 PM EST
    I see the definition a different way. Judges who defy Congress are not activists, but rather "constitutional," or "principled," since just about everything that Congress tries to pass these days is/should be unconstitutional. An activist judge is one who puts another shovel of dirt on the grave of the constitution while bending over for Congress every time they pass a drug law that further erodes the fourth amendment, or the commerce clause, or... Of course, in reality, all judges are activists in some way. I just want judges to be active for the people, not the government.

    Re: Defining Judicial Activism (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:53 PM EST
    Rhetorical question: if Bush is serious about not listening to "the special interest groups," then why is he letting them play such a central role in his decision-making process, complete with White House meetings:
    The White House also has had discussions with four leading conservatives about how best to support the nominee and marshal him through the confirmation process, sources said. That group comprises Meese, Gray, Jay Sekulow, who frequently argues before the Supreme Court and is chief counsel for the legal group American Center for Law & Justice, and Leonard Leo, who leads the Federalist Society, an organization of conservative lawyers. On Friday, Card, Rove and Miers met with the four at the White House.

    Re: Defining Judicial Activism (none / 0) (#3)
    by Dadler on Sat Dec 17, 2005 at 01:00:53 PM EST
    The thought of any kind of "follower" being named to the court is frightening.

    Re: Defining Judicial Activism (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:54 PM EST
    Well, striking down laws doesn't strike me as a good definition of judicial activism. The NH Supreme court declaring that the state has to institute a different tax system to support the school system is a better example.

    Re: Defining Judicial Activism (none / 0) (#5)
    by swingvote on Sat Dec 17, 2005 at 01:00:54 PM EST
    I would define "activist" as it relates to judges as those who find powers granted within the Constitution where there is no mention of them. This would apply equally to conservatives and liberals, although in my experience it is the latter who have a greater share of that tendency. I sincerely hope Bush chooses someone who does not have that tendency, and if that means another Scalia or Thomas, I can live with it. The Tenth Amendment means what it says, and the habit of ignoring it has led to a great many laws that should have never been. Other than that, I can't help but wonder just whose word TL is taking to indicate the wishes of Terry Schiavo. And just a note, TL: Your new setup still doesn't work right. If I can login from one machine, I should be able to login from the other, as I'm using the same login and password to do so. I've written to TypeKey and they conveniently blame your site or my server (must have gotten their training at Microsoft). Still, it's been very nice only reading and rarely responding since there's so much less bs to deal with this way.

    Re: Defining Judicial Activism (none / 0) (#6)
    by Sailor on Sat Dec 17, 2005 at 01:00:55 PM EST
    justpaul, I agree that both 'sides' (actually, it isn't 2 sides, it's a spectrum extending from R to L) have 'interpreted' the constitution way beyond logic. (e.g. bush v. Gore, 'harming the plaintiff'; medical MJ, 'interstate commerce that isn't interstate.') I really don't understand your point about Schiavo, higher courts determine whether lower courts followed the law. In Sciavo's case they did so. Husbands trump parents. And as it turns out in that case, the wasn't anything physically left that was 'Terri Schiavo.' Back on point, my definition of an 'activist judge' is one that searches for any reason, no matter how convoluted, to justify what they think is right.

    Re: Defining Judicial Activism (none / 0) (#7)
    by Pete Guither on Sat Dec 17, 2005 at 01:00:56 PM EST
    Leo, I don't understand why you see that as activist. New Hampshire's Supreme Court didn't decide that taxes needed to be raised to support the schools -- my understanding is that was done in the NH constitution, which required BOTH state support for education and proportionately equivalent taxation. All the NH Supreme Court did there was note that the state was not following the rules of its own constitution and let the legislature come up with a solution that met the constitution. How is that activist?