Conservative "Legislation From The Bench"

By Big Tent Democrat, Section Media
Posted on Wed Jul 01, 2009 at 09:09:43 AM EST
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In honor of Chuck Todd, I am announcing a new feature for the upcoming Sotomayor confirmation hearings - any acknowledgment in the Traditional Media that the Gang of 5 conservatives on the Roberts Court are judicial activists. Here is today's addition, from the New York Times Editorial page:

On another point, the ruling underscored the emptiness of the “judicial activist” label that Republicans like to use in debates over nominees to the federal courts, including Judge Sotomayor. In the firefighters’ case, she actually refused to second-guess the city’s decision — an act of judicial restraint. It was the court’s conservatives, including Chief Justice John Roberts, who voted to overturn the decision of an elected government.

(Emphasis supplied.) Half a demerit to Adam Liptak:

Justices Scalia and Thomas [as opposed to Chief Justice Roberts and Justices Alito and Kennedy] are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences.

(Emphasis supplied.) Nonsense. Scalia and Thomas cloak their policy preferences in "principles," just like everyone else. After all, they are a part of the extreme conservative judicially activist Gang of 5.

Speaking for me only

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Conservative "Legislation From The Bench" | 24 comments (24 topical)

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From what I can tell, RBG is the most principled (none / 0) (#1)
by andgarden on Wed Jul 01, 2009 at 09:27:39 AM EST

member of the court. But her principles, unlike the claims of others, don't resemble biblical literalism aimed at the Constitution.

Thank gawd. n/t (none / 0) (#4)
by oldpro on Wed Jul 01, 2009 at 09:29:48 AM EST

I think this all comes (none / 0) (#13)
by dk on Wed Jul 01, 2009 at 09:57:17 AM EST

from the attempts of lawyers and legal academics to intellectualize the profession. It's similar with all of the social "sciences" (political science, sociology, etc.).

There is an attempt to separate ideology from doctrine in order to claim some sort of scientific objectivity when, in fact, the foundations of the disciplines are based fundamentally on ideology.

It springs partly from the desire to claim that ones particular ideology is somehow the "correct" one, and partly from an inferiority complex vis-a-vis the hard science disciplines. In all my years in academia, and now as a lawyer, I find it very tiresome. I mean, what's the harm in admitting that ones views on the law are ideologically based?


: Oh, I agree with you: it's mostly politics (none / 0) (#14)
by andgarden on Wed Jul 01, 2009 at 10:05:46 AM EST

Oh, and I otherwise like Liptak's article (none / 0) (#2)
by andgarden on Wed Jul 01, 2009 at 09:28:36 AM EST

He makes a decent case for packing the Court, IMO.

I thought it was pretty bad actually (none / 0) (#3)
by Big Tent Democrat on Wed Jul 01, 2009 at 09:29:35 AM EST

I liked it for the end (5.00 / 1) (#6)
by andgarden on Wed Jul 01, 2009 at 09:31:36 AM EST

where he steals my line:

The Constitution, it turns out, means what Justice Kennedy says it means.

One line (none / 0) (#8)
by Big Tent Democrat on Wed Jul 01, 2009 at 09:36:14 AM EST

does not save it for me.


: Fine! (none / 0) (#9)
by andgarden on Wed Jul 01, 2009 at 09:37:00 AM EST

But only half a demerit? (none / 0) (#5)
by oldpro on Wed Jul 01, 2009 at 09:30:45 AM EST

He callled (none / 0) (#7)
by Big Tent Democrat on Wed Jul 01, 2009 at 09:35:41 AM EST

Roberts, Alito and Kennedy judicial activists.


: If Scalia and Thomas (none / 0) (#10)
by Anne on Wed Jul 01, 2009 at 09:40:38 AM EST

are voting with Roberts, Kennedy and Alito, doesn't that make them judicial activists, too?

In music, your refrain is called (none / 0) (#17)
by oculus on Wed Jul 01, 2009 at 10:56:45 AM EST

an "idee fixee."


does this mean (none / 0) (#11)
by Capt Howdy on Wed Jul 01, 2009 at 09:45:38 AM EST

that "judicial activism" is now not only ok but a good a natural thing?

: No. It's not OK when 'they' do it. (none / 0) (#12)
by oldpro on Wed Jul 01, 2009 at 09:49:40 AM EST

BTD: You've got this one all wrong . . . (none / 0) (#15)
by Think Before You Type on Wed Jul 01, 2009 at 10:48:58 AM EST

... Liberals, conservatives, and everyone in between all agree that the Constitution trumps lawmakers' decisions.

The term "judicial activism" refers to overturning the decisions of the elected branches when the matter isn't discussed in the Constitution, or when its presence in the Constitution is viewed as a stretch (such as abortion).

To say that the Constitution prevents discrimination against white firefighters precisely because they are white in not a stretch at all, even if you personally may disagree with it. In fact, progressives who argue otherwise need to make their case much more carefully than they have done so far. (I am aware that this decision was based on statutory, not constitutional grounds; but a similar constitution-based decision is likely to follow within a few years, in my opinion.)

To argue that it is ACTIVISM for the Supreme Court to rule to prevent racial discrimination is one of the most Orwellian uses of language that I've heard in quite some time. Perhaps you could explain yourself further.

: Think before you type (none / 0) (#16)
by Big Tent Democrat on Wed Jul 01, 2009 at 10:51:00 AM EST

The Ricci case, for example, was decided on statutory grounds - or rather the Gang of 5 rewrote Title VII.
As for your view on constitutional interpretation, well, it really is not well informed. I suggest you read my posts on the subject.

It's one thing when a Court announces the law (none / 0) (#18)
by BobTinKY on Wed Jul 01, 2009 at 11:39:05 AM EST

on topics previously unaddressed (e.g. Roe v. Wade). Or reverses one of its own previous decisions as the Brown court did (some say it may not have overruled Plessy but that is purely an academic and moot point). Or rules a statute or regulation unConstitutional.

It is quite another to take eraser and pencil to a statute on the books that the Court has already intepreted several times. That is the very height of judicial hubris.

Scalia is the most activist (none / 0) (#19)
by BobTinKY on Wed Jul 01, 2009 at 11:45:09 AM EST

his claim to uniquely possess knowledge of the framer's "original intent" is nothing more than a pretext for ignoring precedent whenever the mood strikes him. The Federalist Papers are all real time argements about what the Consitution meant even before the ink had dried.

You have lost me (none / 0) (#20)
by me only on Wed Jul 01, 2009 at 12:49:09 PM EST

I can't figure out your point. You believe in judicial activism. You are a proponent of the "living Constitution." Calling the gang of 5 "judicial activists," would seem to be a compliment from you. Is your real complaint that you don't like their politics? If so, why the "judicial activism" charge so often?

I am a critic of hypocrisy (none / 0) (#21)
by Big Tent Democrat on Wed Jul 01, 2009 at 12:53:42 PM EST

But of course, there is much more to what I have written on Constitutional Interpretation than your comment cares to acknowledge.

One large point btw, Ricci was not decided on Constitutional Interpretation.

I wish the defenders of right wing judicial activism could keep their facts straight.


Well, of course you have (none / 0) (#22)
by me only on Wed Jul 01, 2009 at 03:20:09 PM EST

written much more on CI than I could possibly acknowledge in a comment. I probably couldn't summarize in a book. However, that really isn't the issue, and you is smarts enough to know that.

Ricci is judicial activism. We agree on that 100%.

My point is I am not sure what you are trying to hammer home with the "extreme rightwing judicial activist" meme. Is it the "rightwing" or is it the "judicial activism." I can understand your annoyance as to the rightwing. I interpret what you have written in numerous places that you are fine with judicial activism. That you even embrace judicial activism. Are you saying that you a) didn't embrace judicial activism, b) have changed your mind about judicial activism, or c) just dislike it when you don't like the specific outcomes?

Truly Armando, hypocrisy is overrated. As I stated yesterday, if the worst thing a pol ever did was commit hypocrisy, the world would be a much, much better place. (Think about, if a pol ran on a position that included preventative detention and then realized it was a horrible rotten thing, would you really be pissed and raining "hypocrite" down on the pol?) My problem with Obama and preventative detention is not hypocrisy, it is I believe he was pandering. He never really believed what he was saying.

If you see pandering and hypocrisy as the same thing, then I think I see your point.


In the words of the Dude (none / 0) (#23)
by Big Tent Democrat on Wed Jul 01, 2009 at 03:24:28 PM EST

"well, that's just your opinion man."

Seriously, if you are not going to engage the thousands of words I have, swear to Gawd, actually written on the subject of Constitutional Interpretation at this very site and previously, at Daily Kos, then what's the point?

It is a complicated subject and I have treated the subject seriously. Is it that you need me to link to the dozens of posts I have written? Use the search function. you can find them


: Aw hell (5.00 / 1) (#24)
by Big Tent Democrat on Wed Jul 01, 2009 at 03:27:13 PM EST

Here is a link to get you started. If you are REALLY interested, you can review my exchange of posts with Scott Lemieux on the subject of Dred Scott and the Living constitution.