Whaddaya Mean, “Activist”?

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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13 Responses

  1. Lev says:

    Well put.

    There’s also the matter of precedent to consider when discussing judicial activism. What annoys me about this discussion is when the right is when they complain about judges “legislating from the bench.” Um, that’s exactly what they’re supposed to do: in a common law system, we use precedents to apply old rulings to new situations. It’s quicker and more dynamic, though it does give judges an awful lot of power, and I wouldn’t be terribly upset with something like fixed but renewable judicial terms as something of a check on judicial power.

    All I ask is that we admit that this isn’t a civil law system (outside of Louisiana) and that it’s not just the Constitution and the laws we pass that determine what the law is. And it’s the right decision, as civil law systems are popular in Europe, and largely unworkable, for some of the reasons Mark explains here: finding the exact intent from a strictly textual reading is complicated and difficult, and everything moves a heck of a lot slower.Report

  2. Lev – very good points that supplement this quite well.  A decision that has policy implications that are unpopular can always be overturned by the other branches of government, either through amendment or through corrective legislation, depending on the circumstances.  On the other hand, the courts may only overturn a law or policy to the extent it conflicts with established precedent; even when they exceed these bounds (which again is far less often than critics of any nature are willing to admit), the legislature and executive have the ability to overturn those decisions in a way that the courts simply lack the ability to ignore.  Superseding statutes and, on the state level at least, constitutional amendments get passed quite often.  Given that (and especially given the fact that the judiciary must depend on the executive to enforce its decisions), it is exceedingly difficult to understand how any judicial decision could conceivably “usurp” the power of the legislature in a big-picture sense. Report

  3. Bob says:

    William is exactly right in arguing that the process by which the Court reached its decision is more important that whether the result is just.

    Oh, the humanity!

  4. William Brafford says:

    Mark and Bob,

    That’s not quite what I said. I was pretty careful to say that an “undeniably good” decision requires both proper process and proper outcome, not that process is always and everywhere more important than outcome. I’m open to a scenario where fudging on process is the only way to a just outcome. (District judges in the fifth circuit during the 1960s, perhaps? It’s been a while since I’ve read about this.)


  5. William – my apologies; I’ll correct that.   That said, I personally still take the position that process in the courts is more important than the outcome. 

    On the rest of the post, I wasn’t sure if you were also making an argument for originalism, which is why I qualified my inclusion of your argument in the body of the post.  Let me know if you think that qualified inclusion is unfair. 


  6. William Brafford says:

    Qualified inclusion is fair. I find originalism appealing but I’ve got a ways to go before I could say I am justified in believing it. Thanks!Report

  7. Cascadian says:

    This is a hard one for me.  I like to think that I favor process over results but it’s not always so simple.  There are cases where the legislature avoids hard decisions by forcing them on the courts and cases where the courts abdicate their responsibility by labeling difficult cases “political questions” which result in an establishmentarian regime. Report

  8. Cascadian: 

    1.  Good to hear from you again!
    2.  I’m hoping to deal with the “political question” and “nonjusticiability” issue in a follow-up post – you’re right that it’s a tough issue.  I do think there are times when the “political question” doctrine makes quite a bit of sense, and I’d even argue that in terms of the currently-pending case in California on Prop 8, the political question doctrine may be particularly appropriate.

    3. I still owe you a post on the 14th Amendment.  I’ve got some research material put together, but I haven’t had time to give it the appropriate attention.Report

  9. Cascadian says:

    Sorry, I haven’t had time to post much lately.   Still check in to see what’s up, but haven’t had the time to offer anything…. kids, spring break, relationships…. I’m sure you know how it is.  I look forward to your posts but I enjoy most all of what goes on here, even when I disagree.  I’m a big fan of this site, I’ve just been busy.Report

  10. Cascadian says:

    By the way, have you seen the case (I think it came out of Alaska) where someone actually challenged the 14th and the courts ruled it a political question? Report

  11. I know how it goes, believe me – still, it’s good to have you around.

    As for the Alaska case, I hadn’t heard of it until just now.  It’s pretty clear that the 9th Circuit didn’t take the Complaint seriously.  But to be perfectly honest, I can’t really blame them.  Still, something like the validity of a Constitutional ratification is exactly the sort of thing that courts are rightly wary of getting involved with because there really are no judicially manageable standards that can be applied.  The authority of the federal courts, with a few irrelevant exceptions, derives exclusively from Article III of the Constitution, and the jurisdiction of those courts is created by Congress.  Included in Article III’s grant is the power to decide cases “arising under” the Constitution; but a challenge of the validity of an amendment thereto doesn’t really “arise under” the Constitution – it challenges the validity of part of the very document that grants the courts their authority.  There’s a lot more to it, and I’m not sure I can explain it to your satisfaction, but the end result is that ruling on a ratification challenge very much could touch of a Constitutional crisis by usurping authority that is quite specifically delegated to Congress. Report

  12. Cascadian says:

    Dang, lost a post.  I would think that the court would rightfully have jurisdiction and rule on the proceedural issues around the enactment of the fourteenth.  On the other side, I would think that Marbury would be an example of what your talking about, but that’s more or less accepted law, give or take a few signing statements. Report