Statistics show that conservative judges are more prone to legislate from the bench

How about Roe v. Wade? People keep saying that the legality of abortion is now defined (since 1973) and is protected as the law of the land.

I think in some cases, the judges are doing what the citizens are unable to do because it has become too complex and requires too much attention.

 

Again, I call that doing what judges do - namely interpreting the law, in this case the Constitution and the texas abortion statutes, and exercising the power of judicial review as conventionally understood to be established by Marbury v. Madison and successor cases. If you want to overturn that particular type of "legislating from the bench", then pass a constitutional amendment against judicial review, and make the judicial branch utterly subservient to congress and the executive branch. But, I'm not sure if anybody save for a few extremists would consider that a desirable option (plus it would likely bring about the absurd result of the court using its powers of judicial review in order to establish that it has no powers of judicial review)

Absolutely they do in the sense that when a legislature passes a law they cannot draft language to cover every possible eventuality - it would require an infinite amount of language and would be physically impossible. It is up to judges to apply the law to concrete cases and decide them, which most of any political stripe do well in the vast majority of instances (that don't generate headlines)

 

Good point. And striking down a law passed by congress isn't necessarily judicial activism. If Congress passes a law that is clearly unconstitutional, then striking it down is not activism. A judicial activist will try to pass what congress has FAILED to pass. Abortion legalization is your basic example.

Here is a good definitinon I found:
"The view that the Supreme Court justices... can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs."

 

Why is this defninition drawn in this sense? They didn't override congress, they merely interpreted a state law w/the consitiution. They didn't pass anything.

Why is not equally valid for me to say this:

A judicial activist will try to un-pass what congress has ALREADY PASSED

Take US. v. Lopez, in which the court invalidated the Gun Free School Zone act on commerce clause grounds (not a 2nd amendment case). That's JUDICIAL ACTIVISM at its finest - the court overrode a bill that had legislative and popular support on rather esoteric and technical separation of powers type grounds that your average citizen would find incomprehensible. That's JUDICIAL ACTIVISM right there. Or do you have a different name for it?

Why is it more "ACTIVE" for judges to interpret areas of the law that congress has not addressed (but are addressed in the constitution and jurisprudence) than for judges to invalidate acts of congress? At least in the second example - we KNOW for a fact what congress (and accordingly the people) wanted. I think it's far more "ACTIVE" to thwart the will of the people directly.

But, let's put that aside -- by YOUR definition of judicial activism, Brown v. Board of Education is an activist decision, made by judicial activists. The same fits for 99.999999% of all constitutional decisions with respect to any number of constitutional rights.

Virtually EVERY constitutional decision that a court makes has the effect of either nullifying a congressional action or redefining certain rights. EVERYTHING is activist in that sense. That's why those cases end up in the Supreme Court to begin with. IF there was a controlloing act of congress that said all abortions are legal or all abortions are illegal, then Roe, insofar as it's a challenge to the texas state statute, doesn't end up in the SC (however, a challenge to the federal statute would).

Actually, hold on, let's turn back the clock and imagine that scenario hypothetically. Let's say that Roe is a challenge to a federal anti abortion statute - just like Lopez is a challenge to a federal statute. Roe challenges the statute, matter is kicked up to the Supremes, the Supremes find the federal statute to be unconstitutional. Now, under YOUR definition of judicial activism, this is not judicial activism. (assuming that you don't think Lopez and the other favorite conservative cases that curtail the executive and commerce clause powers to be "judicial activism" - I assume that they ARE judicial activism, which helps to render the term hopeless and meaningless) Under MY definition of judicial activism, which I think is just as legit as yours, it is judicial activism.

When you can make things look that silly just by changing a few variables - you need a new theory.

 

Sure, invalidating laws passed by Congress certainly CAN be judicial activism as well. It isn't limited to what I stated, but that is the most obvious case of it. I guess I should have just left it at the definition I found, which was snipped in your response.

What it really comes down to is how you interpret the Constitution. Are there certain things about it that don't change? Or are you going to be "activist" and interpret it creatively?

The problem with Roe wasn't the result, but HOW it was reached. If all state legislatures legalized abortion, then unless there was something that can be clearly derived from the Constitution, then YES overturning it would be activism. When the court very creatively found that abortion was a right derived from a privacy right, then it is activism rather than interpration.

There is a big difference between interpration and activism, the latter is simply creatively finding reasons to support your agenda, whether conservative or liberal, overturning or making new law.

 

I think this term "legislating from the bench" has much deeper roots than what goes on inside a courtroom. It's about getting judges elected who will do your bidding. It's about bringing public pressure on the courts by the sheer volume of cases and, in some cases, the extrmeness of cases, i.e. the cases of the lone parent taking on the school board because the word Christmas appears in a school handout. Now, after 100 years it is suddenly recognized to be a problem that the Supreme Court needs to remedy. Sure...

I wish there were some way to indicate or measure the magnitude of these decisions which the article references.

 

It would only be "discriminatory" if it weren't true. Recent events show otherwise.

 

I put your response (when I was reading it) in previously encountered SamFisher tone. My bad and I apologize for misunderstanding/misperceiving your response/intention.

The reason that example came to mind was the the judge in the overcrowding case didn't say 'this is unconstitutional so you (the legislature) must fix it.' He declared it unconstitutional and then actually took over administration of the system, enumerating the specific administrative changes. This is ground that the legislature would normally address not the courts. That step of taking over the actual administration was outside the scope of what the courts are supposed to do.

 

So...it's not judicial "activism" of Roe that you're concerned about, rather it's the type of "creative" legal reasoning employed based on Griswold and the other cases that found an individual right of privacy that the government shouldn't interfere with (and I thought you cons were for less government...) But in other words: judicial activism = decisions that conservatives don't like. (not to mention the "creative" reasoning involved in Lopez, which conservatives don't have any problem with)

By this, I take it you mean that you're an "originalist" - which creates its own set of problems. If we were to follow an extreme, uncreative originalist approach to the constitution, we'd still have segregated schools and be executing people for shoplifiting etc etc.

Fine and dandy, but don't blame a red herring like "activism" that, like I showed, can mean any decision, reached any time, any place.

 

I suppose but the way the judge (speculating) would couch it would be like this: Either I can issue a bunch of orders, and the state can try to comply, and the plaintiffs will have to bring a bunch of new lawsuits wasting everybody's time and money with legal pleadings, etc to enforce compliance, or else they can just report straight to the courts (if that is indeed what happened) to ensure that the orders are carried out as the situation was apparently that drastic. I'm not that familiar with whatever cases/statutes discuss the supervisory power of the courts to tell you the truth though.

 

Really? When some on the right point out high statistics of imprisonment among minorities most on the left call that discriminating.

 

I think Hayes has a point here. I think judicial activism and legislating from the bench has to more to do with the remedies imposed by the court rather than the rulings themselves. Its up to the legislature to pass laws and the Executive to enforce them but when a Court starts proposing and enforcing remedies then that encroaches on the other branches.

I'm not saying this is always a bad thing but I can see how that can be considered judicial activism or legislating from the bench.

 

Nevermind(edited)

 

I definately think in the current state of political rhetoric there is very much something to this. Modern Conservatives, particularly social conservatives, really don't want strict interpretations of the Constitution and often are for what would be considered Judicial Activism. Take the Schiavo case for instance where social conservatives demanded that Federal courts step in and rule on a state issue. When the Congressional social conservatives realized that they couldn't pass a bill in time to put back Schiavo's feeding tube in time they virtually threatened the USSC to step in and make an activist ruling. It made perfect sense to me that Jesse Jackson would be calling for the USSC to step in but for people like Bill Frist and Tom Delay who've been complaining about unelected federal judges overstepping their bounds demanding for them too do that very thing?

Also in regard to cases involving religion and police powers conservatives have long been upset about courts ruling on strict interpretations of the First, Fourth, Fifth, Sixth and Fourteenth Ammendments.

 

Thinking it through, I'm speculating without doing research again (since nobody's paying me, I'm not doing any research, sorry!) I would say that the Ruiz case supervisory powers stemmed from the district court's inherent power (that all courts have, generally) to enforce it's own judgments (and it appointed a monitor or master to make sure that its judgments were being carried out, I believe, which is fairly frequent in the federal court system for all sorts of reasons in complex cases in order to delegate the very scarce time and resources of federal judges). Again, while some might think that's overstepping the bounds of the court's authority - I presume the judge would say it is "streamlining" the process, rather than forcing inmates to file a new lawsuit every week when they are allowed to be gangraped or whatever, which saves time and money for both the court, the state, and the prisoners, I don't see it as "legislating" no new laws are being made, or were made.

Epilogue: In 1999 the republicans hammered through a legislative provision through congress which effectively terminated this authority, so they had the last laugh in the end.