Survey: "Half of U.S. Sees 'Judicial Activism Crisis'"

by Last Night in Little Rock

The ABA Journal eReport issued today says that a random survey of 1016 Americans (not including Lousiana, Mississippi, or Alabama because of Katrina) finds that half of the respondents believe there is a "judicial activism crisis."

All this report tells me is that the Republican spin machine has succeeded in brainwashing the American public and that Joseph Goebbels, Hitler's propagandist, has been truly been reincarnated in Karl Rove.

The same nitwits that have been telling us of "judicial activism" were the ones trying to force the Terry Schiavo case, a state case based purely on state law, into federal court, as TChris wrote here and several other postings. The best example of judicial activism in Schiavo in the dissenting opinion where the dissenter was suckered into believing that there was a federal issue there, somehow. Or was he just being a Republican judicial activist?

Congress can meet into the night to pass a statute for one person's family to go federal court to override her own belief in a right to die and override state courts that had ruled on the question several times over the years. A political horse to ride. Creating judicial activism, and then criticizing the judges who aren't as active as they want.

Yet, we can't get Congress to talk about Social Security reform over lunch, let alone work into the night.

In 1950, politics and judging were recognized by Justice Frankfurter: "[W]here one comes out on a case depends on where one goes in." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting). If one is a Republican hack appointed to the federal bench, well, then that judge is going to do what the power that put them there wants. If it is an issue dear to the Paleo-Cons and they lose, the judge who ruled against them is an activist. If they win, it is "justice."

Get me a barf bag.

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    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#1)
    by DonS on Sat Dec 17, 2005 at 01:04:32 PM EST
    Push a "code word" in front of the American people often enough and it will become part of their vocabulary. Of course, where it is a highly politicized word, though vague in itself, each will adopt the meaning and implication that fits one's own predisposition -- I'm sorry -- at least among the sheeple that are the primary targets of propaganda. No longer value neutral, it becomes an even more potent weapon, an epithet to arouse emotion. I wouldn't be surprised if, among those who see themselves as against "judicial activism", are individuals who hold diametrically opposed views. So, having been imbued with a negative connotation, it becomes a question of who can shout loudest, infer most darkly and effectively, and link to the most easily triggered emotions.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#2)
    by ras on Sat Dec 17, 2005 at 01:04:32 PM EST
    Crisis or not, it makes perfect sense to nominate and confirm non-activists, those who would impose no view of their own, but would simply defer to the plain meaning of the Constitution. John Roberts, for example. That is, if you truly believe in democracy. Otherwise, not.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#3)
    by DonS on Sat Dec 17, 2005 at 01:04:32 PM EST
    Ras, your words sound noble but are meaningless in practice. Surely you must be baiting, and I guess I took the bait. Silly me.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#4)
    by ras on Sat Dec 17, 2005 at 01:04:32 PM EST
    DonS, No, no baiting intended whatsoever. If one truly believes in democracy, then a constitutionalist approach is the only way to go, is it not? I'm now seeing some grief on the Right over Roberts constitutionalist answers. E.g. He said that Roe is "settled law." Well of course it is: it went all the way to the Supreme Court. By definition, it doesn't get more settled than that. Doesn't mean he agrees with it, doesn't mean he disagrees with it, or its reasoning in general. It means that, as an Appeals Judge (at the time) he respects it as a ruling from a higher court, one that he must then uphold. Roberts the constitutionalist understands what Supreme means. The Right needs to get used to this, just as the Left will need to get used to it when rulings go against their preferences. Both sides should concentrate on changing laws and/or amending the constitution, rather than back-door'ing their prefs via the courts. To do that, they need to win elections and popular support. That's democracy.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#5)
    by squeaky on Sat Dec 17, 2005 at 01:04:32 PM EST
    ras- either you are psychic or towing the party line. Roberts had not proved himself to be a neutral middle of the road jurist. The WH refused to hand over any documents that would enlighten us as to where he stands. All bets are off until we see him in action, so positioning him as a good example of a non-activist judge is horse puckey and your own opinion. My opinion is that he is a political operative and quite the activist. We'll see...

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#6)
    by ras on Sat Dec 17, 2005 at 01:04:32 PM EST
    Squeaky, One does not "tow" the party line unless one is drinking & singing on a boat at the same time. One more often colloquially "toes" the line, as in keeping precisely on it. In any event, I'll bear your comment in mind next time I go a fishin'. :) As for JR, his history and his answers all indicate a constitutionalist. As in my example with the Right and Roe, this is not at all the same thing as producing "favorable" or "unfavorable" decisions, however defined. Pls do not confoozalate the results with the process. It's understandable in the short term to do so, if incorrect, cuz it's a new approach to some people, esp political junkies for whom results can be all. But both sides, right & left, better get used to it cuz it's becoming the norm now, a welcome trend IMHO.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#7)
    by squeaky on Sat Dec 17, 2005 at 01:04:32 PM EST
    ras-good catch. How's this: you are towing a party line encrusted with horse pucky, and making dropoffs on this site. Is that more suitable for your trolling expedition. Their young men . . . trolled along the brooks that abounded in fish. --Bancroft. [1913 Webster]

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#8)
    by ras on Sat Dec 17, 2005 at 01:04:32 PM EST
    Squeaky, That's, er, quite the line you handed me. Cheers.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#9)
    by squeaky on Sat Dec 17, 2005 at 01:04:32 PM EST
    ras-thanks, I will forever be grateful to you for disentangeling my toes from my tows in the line above. Cheers.

    Ras: There is no such animal as a "constitutionalist". Show me the purported definition and I'll show you that it's likely oxymoronic. ALL documents, in order to be understood, have to be interpreted, Constitution included. The question comes down to HOW one goes about interpreting the document in question. And since any document worth understanding is, by its nature a dynamic document, the question necessarily becomes one of context. So, ras, are you positing that JR is a literal contextualist (meaning the Constitution means what the Founders allegedly meant it to mean in 1789) or a dynamic contextualist (meaning the Constitution is loosely structured to mean what society at a given point posits it to mean)? I hope you don't mean the former because NONE of the justices on the bench today truly believe in this approach (although they mouth the right catch-phrases to their respective constituencies). Actually, I don't think we need to worry so much about how JR interprets the Constitution (since there is a unique way for each justice) as 1) how much he defers to established lines of precedential caselaw and 2) how he will constrain his jurisprudence when it comes to addressing de novo issues before the Court. If JR is the man the Reps claim him to be, I suspect that he just might make a damned good justice, hewing to precedent, while cautiously applying old precedents to novel situations. If he does this, Roe v. Wade is safe, though its progeny may not be. So, while the right to abortion is likely sacrosanct, the procedures that evolve from said right likely are not. JR may be more than the Reps bargained for - a "classic" conservative (i.e., NOT a conservative at all, by its modern definition); a closet Souter. We can only hope. And to answer the question dying to be answered by this thread - judicial activism is merely another name for judicial independence - and it is driving the legislative and executive bodies crazy. Viva judicial activism!

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#11)
    by ras on Sat Dec 17, 2005 at 01:04:33 PM EST
    Lavocat, I think this puts me over my STC count for the day, so it may not last, but ... You're gonna hurt yourself w/that much twisting. Your arg boils down to: real constituions are impossible and there is no way to ever have rule of law. And, btw, previous eras in history are so different that they have nothing to teach us. It's a whole new generation, man, and we're, like, hep. You old-time squares wouldn't dig it. Maybe, but I doubt it. I get more from reading Goethe, for example, than I do from your prose. Just one small example, I grant you, but sometimes one can truly find the universal in the particular.

    Re: Survey: "Half of U.S. Sees 'Judicial Activism (none / 0) (#12)
    by Sailor on Sat Dec 17, 2005 at 01:04:33 PM EST
    wow, somehow lamebaugh and o'lielly and the rnc nooseletter said exactly the same thing as rat today! jeez, all those proven liars spouting the same lies at the same time ... just a coincidence I'm sure.

    Ras: You missed my point entirely and misstate my argument - but you already know that. REAL constitutions are LIVING documents. And living things are always changing. It matters not WHEN they were written but HOW they were written - usually with lots of room for interpretation. To me, the best constitutions are like the best poems - they mean different things to different people at different times - but they have a very coherent and underlying structure. Less is more, essentially. Or, if you will, variations on a theme. The Framers, in The Federalist Papers, et al., knew this and made very clear that their purpose was not to enslave future generations to a specific dogmatic interpretation of democracy, frozen in the time of 1789, but to allow the Constitution to be interpreted as each succeeding generation saw fit, within relatively clear parameters, with their evolving mores and technologies. The Constitution is there not to DICTATE a given course of action (you'll note that none of the rights enshrined therein are absolute) but to ADVISE as to what would likely be the best course(s) of action among many possible courses of action. And the Supreme Court's raison d'etre is to guide the interpretation of the Constitution, over time, down those best possible courses of action, tweaking them as society's mores and technologies continue to evolve. History has EVERYTHING to teach us, which is why stare decisis is important though NOT definitive. And as for the rule of law, that's all we have if we are to remain a civilized democracy.