Bemoaning The "Activist" Court

By Big Tent Democrat, Section Media
Posted on Tue Jun 02, 2009 at 09:20:00 AM EST
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Ross Douthat, in classic Claude Rains style, is "shocked, shocked" to discover the Supreme Court is an active part of the political process. Why it took Douthat this long to discover that the current conservative Court is just as political and activist as, well, all the others, is beyond me. But his "prescriptions" for the problem seem less than well thought out:

There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation. . . . Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.

So Douthat thinks a 6-3 decision would be less "activist" than a 5-4 decision? Why for heavens sake? (For Douthat's information, Roe was decided by a 7-2 vote. Most of the Warren Court decisions conservatives like Douthat hate had at least 7 votes.) And how term limits would help in Douthat's project is beyond me. Why would a term limited Justice be any less likely to be "activist" than a life tenured one? More . .

Douthat's proposals are senseless. They also presumably require constitutional amendments. I stick to my long held view - let's stop pretending that the Supreme Court is not a political institution and insist that specific answers be provided by the President's judicial nominees to the questions the Senate wants answers to. Reinvigorating in a real way the Senate's advise and consent role (something conservatives like Douthat vehemently argued against during Republican Presidencies) is what is required. That is the way to make the Supreme Court responsive to the People - by making them respond to the questions of the People's representatives in the judicial naming process.

This requires nothing more than actually following the Constitution - having the Senate actually advise and consent on judicial nominees. But conservatives like Douthat have railed against this forever. Maybe now is the time for them to rethink their senseless views on this.

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Bemoaning The "Activist" Court | 45 comments (45 topical)

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I didn't realize that the Supreme Court (5.00 / 3) (#1)
by Militarytracy on Tue Jun 02, 2009 at 08:31:58 AM EST

was "political" until my early twenties and I think the only reason why I came to understand that then was because Roe was in danger and the womens groups were out in force. I decided to write one of my papers due in a standard government class on what was taking place and only then did I discover how political the court is. Previous to that, growing up, whenever I saw a photo of the Supreme Court it stirred me to awe. The Catholic church only gets one pope, I was American and special and I got nine and that seemed to make them God like and infallible back then.

I suggest that a term limited justice (5.00 / 3) (#2)
by me only on Tue Jun 02, 2009 at 08:42:49 AM EST

would be more activist. The individual could not allow things to happen incrementally. The judge might only get one shot and therefore they have to make that count.

: Plus, they may be looking for a job (5.00 / 5) (#4)
by ruffian on Tue Jun 02, 2009 at 08:48:16 AM EST

after their term. We think we have a problem with revolving door lobbyists now...

And, Of Course (5.00 / 4) (#3)
by The Maven on Tue Jun 02, 2009 at 08:47:54 AM EST

the right-wing only seems to give consideration to the concept of Supreme Court "reform" during times when they're the party out of power. Curious how that would always seem to be the case. Had someone on the left been foolish enough to propose ideas like these four or six years ago (and, in all likelihood, I imagine someone probably had, during Roberts/Alito), the idea would have been denounced from GOP rooftops as an unjustifiable attack on an American institution. The transparency of the conservatives' motivations has left them open to attack on the grounds of intellectual inconsistency yet again -- not that this has ever stopped the likes of Douthat and his ilk before.

And this doesn't even begin to address the empirical evidence that it's generally been the so-called conservative justices who have been the most reliable votes to overturn laws (or radically reinterpret them), thus engaging in the dreaded "legislating from the bench". So much for judicial restraint and/or respect for precedent.

: I have written forever (5.00 / 4) (#12)
by Big Tent Democrat on Tue Jun 02, 2009 at 09:09:38 AM EST

about the Senate's advise and consent role.
I think that if the GOP can muster the votes to filibuster Sotomayor and think they should, then more power to them.
I have fought against this deference to the President idea forever and I will continue to do so, no matter whether the President is a Dem or a Republican.
I believed it then and I believe it now.

Is anyone (5.00 / 6) (#5)
by Ga6thDem on Tue Jun 02, 2009 at 08:51:47 AM EST

else tired of that term "activist"? Everytime I hear it, it brings to mind W's whining about "liberal activist judges". Frankly imo, it makes more sense to actually talk about how bad the decisions of certain judges have been and the effect that it has had on the country.

That would be too complicated (5.00 / 4) (#9)
by inclusiveheart on Tue Jun 02, 2009 at 09:03:46 AM EST

for the audience to which the GOP is appealing. It is an audience that see the world in pretty stark black and white terms. Making connections between a particular precedent setting case and another similar but different scenario is far too nuanced for their team. That's why they focus so heavily on blanket perjorative terminology in their communications. Everything is basically either "good" or "bad" - mostly bad for them - and there is no such thing as "good and bad" that might be judged on the pros and cons. One little tiny aspect of bad tends to poison everything regardless of how good the good might actually be. But you know all this.


It has always been really grating (5.00 / 1) (#18)
by ruffian on Tue Jun 02, 2009 at 09:23:51 AM EST

language to me because it seems like an oxymoron. Even judges that rule to change the established order are not out there spearheading change - at least it seems that way to a layperson like myself - I'm sure there are people here that can name exceptions. It takes the real activists to get the cases before the court to begin with.


Wouldn't you love (5.00 / 3) (#22)
by ruffian on Tue Jun 02, 2009 at 09:30:53 AM EST

a George Carlin riff on that word 'activist'? Activist = DFH = oooh, scary bad. I'm a community organizer! Organized - goood!!!


A George Carlin (none / 0) (#33)
by me only on Tue Jun 02, 2009 at 11:00:24 AM EST

riff on anything today would be, well a miracle...


: Sadly, yes (none / 0) (#37)
by ruffian on Tue Jun 02, 2009 at 11:11:02 AM EST

I miss him a lot!

People who have an agenda and (5.00 / 2) (#6)
by inclusiveheart on Tue Jun 02, 2009 at 08:55:26 AM EST

who are working under term limits generally tend to be more aggressive and activist imo. Furthermore, the prism through which they look at issues is short-term as a result and they don't consider the larger ramifications of their temporal decisions. Seems to me, term limits on the court would produce exactly the opposite effect that this guy is looking for; and would like lead to more conflicting and uneven decisions.

Two words: Gay Rights (5.00 / 1) (#7)
by MyLeftMind on Tue Jun 02, 2009 at 08:56:06 AM EST

A sudden change requiring a 6 to 3 vote would pretty much assure SCOTUS could squash any chance for equality for those uppity queers asking for constitutionally guaranteed rights.

: Thereby also ensuring (5.00 / 1) (#8)
by Militarytracy on Tue Jun 02, 2009 at 09:00:56 AM EST

that boring straight barefoot women will never get their constitutionally guaranteed rights either.

: There will be no such change (none / 0) (#11)
by Big Tent Democrat on Tue Jun 02, 2009 at 09:06:55 AM EST

It is just Douthat wanking.

I have decided that every "conservative" (5.00 / 2) (#10)
by andgarden on Tue Jun 02, 2009 at 09:05:21 AM EST

who squawks about "activist judges" needs to be confronted with Brown v. Board and the southern manifesto.

I would challenge them with a case (none / 0) (#13)
by inclusiveheart on Tue Jun 02, 2009 at 09:11:30 AM EST

that they would agree with. Chances are very high that many would take issue with B v. Board - states rights people, racists, anti-public education types - many fit into one or all of those categories.


I want to reveal their disagreement (none / 0) (#14)
by andgarden on Tue Jun 02, 2009 at 09:12:43 AM EST

I think it is pretty much an (5.00 / 2) (#20)
by inclusiveheart on Tue Jun 02, 2009 at 09:28:14 AM EST

open secret that these people are radically conservative on both sides.

I'd be more interested in revealing their hypocritical agenda - which is extremely activist. Because part of how they get away with being radically conservative is by pretending that they can be restrained in their radicalism. To me Roberts is the epitome of that ploy. He comes off as so "nice" and "friendly" - he claims to respect "super duper precedent" etc.


: You just described some (5.00 / 1) (#27)
by Militarytracy on Tue Jun 02, 2009 at 09:42:10 AM EST

authority figures (Bubba sort police officers) I've rubbed up against down here having a teenager and it made my hair stand on end a bit. I had a white teenager, she did seem to get a different standard of patience for her shenanigans than some other kids did. But unless you want to spend night and day attempting to dig that tick out and then still probably not get it, you just stand there smelling that smell yet grateful that your teenager gets a warning...best not point out things that they would take out on your kid for pointing out.

: No reason not to do both (none / 0) (#21)
by andgarden on Tue Jun 02, 2009 at 09:30:47 AM EST

So disagreement (none / 0) (#15)
by Militarytracy on Tue Jun 02, 2009 at 09:17:42 AM EST

with a past ruling is something that conservatives claims reveals an activist judge? Asking completely from a learning perspective here.


No (5.00 / 1) (#16)
by andgarden on Tue Jun 02, 2009 at 09:21:49 AM EST

I want the implications of their views (no Brown) to be open for the world to see.


Okay (none / 0) (#17)
by Militarytracy on Tue Jun 02, 2009 at 09:23:00 AM EST

and then their Conservative activism would be exposed.


Not really, (5.00 / 1) (#19)
by andgarden on Tue Jun 02, 2009 at 09:27:42 AM EST

It's about how they don't want the Court to perform one of its most important functions: protecting minorities from unconstitutional majority tyranny.


Thank you for explaining all that to me (5.00 / 1) (#23)
by Militarytracy on Tue Jun 02, 2009 at 09:34:54 AM EST

Conservatives have become very very good at hiding their agendas and you just happen to be fresh and on the legal frontlines right now.


: Their entire shtick is predicated (5.00 / 1) (#25)
by andgarden on Tue Jun 02, 2009 at 09:37:38 AM EST

on the idea that people don't know anything about the constitutional framework of our government.

But who doesn't know that about (5.00 / 1) (#24)
by inclusiveheart on Tue Jun 02, 2009 at 09:35:40 AM EST

them already? Or more to the point, who doesn't know that who will actually care in the way you and I do?

Personally, I think that the next challenge will be breaking down the notion that people this radical can be trusted to participate in running the government without getting out of control. This notion that being "bipartisan" when one party is radicalized and off the rails has any real value t productive discourse and effective and stable governance.


: There are lots of smart people out there (5.00 / 3) (#26)
by andgarden on Tue Jun 02, 2009 at 09:39:25 AM EST

in the world who don't know much outside of their area of expertise.
Think of the "controversy" over global warming, for example.

But, couldn't a clever (5.00 / 2) (#29)
by dk on Tue Jun 02, 2009 at 10:34:15 AM EST

conservative retort with "well, the leader of the Democratic party is now advocating for a separate but equal regime for gay people; what does that say about the Democratic party's views on the principles of Brown?"


The response would be to look at (none / 0) (#31)
by andgarden on Tue Jun 02, 2009 at 10:51:44 AM EST

how JFK and Nixon campaigned on race in 1960. Politicians are often behind the Court.


That seems nonresponsive. (none / 0) (#32)
by dk on Tue Jun 02, 2009 at 10:58:12 AM EST

(Not that I don't disagree that politicians can be behind the Court).

The point, it seems to me, in forcing some conservatives to come out against Brown, it seems to me, is to try to marginalize them by implying they are the radical ones.

However, even if those conservatives are radical (which is probably true), I don't know if exposing their views on Brown is the best way to do at this point, since apparently mainstream America, given their overwhelming support for Obama, seems ok with separate but equal for some.

I'm not happy with it, of course, but it does seem to be the reality. There is always an opportunity, of course, for Democrats to reclaim a moral high ground. But right now it doesn't seem we're at that point, collectively.


Politicians and the people (none / 0) (#34)
by andgarden on Tue Jun 02, 2009 at 11:00:38 AM EST

often need to be led by the Court. Interracial marriage is the best comparison: most Americans were opposed until somewhat recently.

As for the dig against the party, well, what's your point?


Well, maybe I'm not understanding (5.00 / 1) (#35)
by dk on Tue Jun 02, 2009 at 11:04:46 AM EST

your point for wanting to expose them on Brown. My assumption is that you think by doing so, you are exposing them as out of the mainstream. Yet, it also seems like large numbers of Democrats, in addition to the leadership of the Democratic party, do not agree with principles behind Brown.

So, I guess if the point is to show that conservatives are out of the mainstream, I guess I don't see Brown as the most effective way to do it.


Let me get this straight (none / 0) (#36)
by andgarden on Tue Jun 02, 2009 at 11:06:36 AM EST

You think that because most people don't want to carry forward some of the reasoning of Brown right now, extreme Republican opinions about Brown aren't worth exposing?


No, that's not what I'm trying to say. (none / 0) (#38)
by dk on Tue Jun 02, 2009 at 11:21:52 AM EST

I thought what you were trying to say is that you want to point out that conservatives are out of the mainstream, and that by calling them out on Brown is a good way to achieve this goal.

My response is that, while I agree that conservatives are out of the mainstream, I don't necessarily think that focusing on their opinions of Brown is the best way of showing this, as signficant parts of the Democratic party, including its leadership, are not following the principles of Brown as they would apply to GLBT Americans.

IMO, as I said before, the Democratic party has the opportunity to take the moral highground, but at present it is refusing to do so.

When you say (5.00 / 1) (#39)
by andgarden on Tue Jun 02, 2009 at 11:26:16 AM EST

while I agree that conservatives are out of the mainstream, I don't necessarily think that focusing on their opinions of Brown is the best way of showing this, as signficant parts of the Democratic party, including its leadership, are not following the principles of Brown

I understand the words, but I don't see the reasoning. Why?

It seems very much to me like you want to back off of the Republicans because the Democrats aren't perfect.


Just because I disagree with (none / 0) (#40)
by dk on Tue Jun 02, 2009 at 12:23:43 PM EST

your proposal of how to go after Republicans doesn't mean I want to back off of them. I just disagree with you. No need to impugn motives that aren't there.

IMO, the Democratic party doesn't have the moral highground, nor is it propounding the more ideologically satisfactory legal arguments, in connection with the principle of separate but equal. Thus, I don't think that focusing on Brown is a particularly useful or logical method of pointing out the problems with conservative ideology or policy at the present time. At the moment, I think it is a fair to say that the rejection of the principles of Brown is a bi-partisan phenomenon. That's all I am saying.


: Not an attorney (none / 0) (#44)
by Militarytracy on Wed Jun 03, 2009 at 05:50:28 AM EST

But based purely on my experiences as a human being, exposing the Republican hidden agenda in all of the ways that those of us who hunger for equality see to expose it, how is that a sort of wrong?

It goes beyond Brown (none / 0) (#42)
by lobary on Tue Jun 02, 2009 at 02:05:10 PM EST

You are right, of course, but they hate Brown because it is a natural, logical extension of the constitutional shift that took place in the wake of the Civil War amendments.

Let's expose the radicalism of their "states rights" crap for what it is--antagonism toward the Fourteenth Amendment as the vehicle that gave the federal government supremacy in the realm of protecting civil rights against state interference.


"Activist" is what the GOP (5.00 / 1) (#30)
by Anne on Tue Jun 02, 2009 at 10:50:39 AM EST

and conservatives call anyone who isn't likely to act in accordance with how they define "bipartisan" - the "activist judge" is someone who won't do his or her job "their" way.

It's very Frank Luntz-ian, with "activist" conjuring up all manner of uncivil and intemperate individuals who, if they hadn't been judges, would have been rabblerousing troublemakers. And we know that those kinds of people really do not love America the way they should.

Ah Mr. Douthat, the (5.00 / 0) (#43)
by mg7505 on Tue Jun 02, 2009 at 04:56:53 PM EST

latest addition to the Times' opinionators, the conservative 'balance' in the towering heights of opinion journalism. Does anyone seriously believe that this man provides a foil anywhere near the level of Krugman or even Herbert, Kristof, Rich etc? Of course I would say the same thing about Maureen Dowd.

Douthat's column is more interesting as a display of the Times' poor judgment in what constitutes good writing, sound reasoning, and appeal to an intelligent audience - anywhere on the political spectrum.

: If I ran a newspaper today (none / 0) (#45)
by Militarytracy on Wed Jun 03, 2009 at 06:04:04 AM EST

What hireable Conservative with journalistic skills is out there can compare with Krugman's intelligence and understanding of the human condition meshing with economics? Not long ago the Democratic party had lost its way. The leaders forgot what the party was about and they still fail to remember most of it and that's why Krugman isn't exactly loved by a whole bunch of folks claiming to be liberals. The Conservatives are much much worse though, the selling points that used to work to fuel their hidden agenda morally bankrupted the United States and economically bankrupted the world. If you have stuck with that herd and can be called a Conservative by today's standards you are also very incongruent in thought, word, and deed.

I do not believe in stacking SCOTUS (none / 0) (#28)
by Saul on Tue Jun 02, 2009 at 10:15:31 AM EST

no matter which party is in power. I wish the ruling that the president in power has the sole right to stack it with justices that belong to his party and his views would be changed.

I know I am dreaming but so did Martin, but wouldn't it be better if the SC justice alternated in party choice no matter what party the president belong to. i.e. If the last nomination was a justice who belonged to the republican party then the next vacancy must be a justice that belongs to the democratic party even if the president during this new vacancy is a republican. And so on.

To me that is a more balance court which represents an more equatable view of what Americans want or do not want.

Here's the problem as I see it: (none / 0) (#41)
by oldpro on Tue Jun 02, 2009 at 01:40:15 PM EST

Columnists sign contracts to write a given number of columns a week...week in and week out. No surprise they run out of subjects on which to comment sensibly. Some are more creative than others. I'll take Ellen Goodman any day of the week.