We’ve long known that judicial activism is merely whenever a court rules against what the wingnuts want right now (in a few years, if their desires change, they may no longer view the ruling as activism), but it is nice to have someone say it in print:
For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.
***Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.
For me, the clearest example of the lie regarding judicial activism is the way that Republicans treated Judge Greer in the Terri Schiavo case. The Republican Judge Greer made the fatal mistake of actually calling balls and strikes and correctly according to Florida law, ruled against the fringe right and the Schiavo dead-enders, and for doing what conservatives claim they want- strict interpretations of the law, Greer was subjected to a smear campaign so fierce that included his being asked to leave his church. The current Republican candidate for Governor in Ohio, John Kasich, told people that Judge Greer “sold out” Terri Schiavo. He was called a murderer, and told that he was committing judicial homicide.
Republicans and conservatives don’t care about the law, the Constitution, or “conservative” principles or “strict constructionism” or any of he other bullshit that rolls so effortlessly off their lips. They care about what they want right now, and if they don’t get their way, you are an activist judge. Period.
geg6
Well, while you’re right about Judge Greer, you’re wrong about the most egregious example of the radical activism of the judicial right.
Bush v. Gore. End.of.story. Nothing else even begins to come close.
steve
I think it was ed brayton who said “activist judge” means “judge who doesn’t agree with me”
The Moar You Know
What the GOP pulled in the Schiavo case should have reduced that party’s support to about that enjoyed by the Green party in recent years.
That it didn’t is proof of my assertion that most of my fellow citizens are imbeciles.
Scott
I’ve noticed that any Republican-appointed judge who does call balls and strikes is likely to get denounced by the rightwingers. Judge Greer is one example — Judge Jones in the Dover Decision is another.
cleek
it is nice to see it print.
but, what we really need is for the press (and not just guest op-ed writers) to internalize this knowledge and allow it to guide their reporting.
otherwise, we’re stuck with “conservatives charge judicial activism, let’s ask law professor Glenn Reynolds what he thinks.”
in other words: the press needs to be able to call balls and strikes, too. otherwise, what’s the point of standing behind the plate ?
Ash Can
Yes. More of this, please.
Bill E Pilgrim
OT except for the “spreading bullshit” link:
What struck me reading this is that there’s not more of this. Here we have something utterly deserving of populist anger and instead of marching on the castle, they’ve got people with pitchforks protesting putting some moderate limits on health insurance corporation practices, and/or some fantasy about birth certificates.
Misdirection brought to a fine, high art.
steve
I live in the deep south, and have studied the 40 year southern strategy. If you want to understand shiavo and the modern GOP, come draw deep of the stupidities here, and all will be revealed.
Elvis Elvisberg
Federalism, too.
If the federal government is fighting slavery or desegregating schools or expanding access to health insurance, then states’ rights are important to conservatives. If the federal government is locking up Muslims or arresting pot smokers complying with state law, well, why mention federalism?
Added: the only neutral definition of “judicial activism” is court actions to invalidate a statute. After all, as all those close votes on the Supreme Court indicate, there’s a whole lot of debate over what is and is not constitutional. And by that measure, the Roberts Court is following in the footsteps of the most activist Court in the nation’s history, the Rehnquist Court.
Redshift
Calling whatever they think the Framers should have meant “original intent” is also the worst. Contrast the “Citizens United” decision that the first amendment was intended to let corporations make unlimited political contributions to Thomas Jefferson:
slag
This is kind of the most absurd thing about rightwingers, in general. Their ability to market their flagrantly protean, idiosyncratic desires as being constituents of some authoritative-sounding, hard and fast “principle”. And not only market them this way to others but to themselves as well.
Any passing glance at reality should instantly undermine their marketing scheme, but it doesn’t seem to do so for quite a lot of people. It’s mystifying, really. I mean, how do they do it? It almost hurts my brain to think about it.
FiveInchTaint
And don’t forget that conservatives are now pushing for the courts to strike down the health insurance reform law, which, I think it’s fair to say, would be the height of judicial activism. They’re all for judicial activism when it supports their politics.
MattF
Wingers don’t have opinions, they simply acknowledge a set of self-evident truths.
Redshift
@Elvis Elvisberg: Not to mention that when they’re in power they constantly try to enact laws that pre-empt state regulations with weaker federal ones.
Conservatives believe that local control is better, except when local government makes the wrong decision, and then it should be overridden. How this differs from not believing in local control at all is left as an exercise for the reader.
The Grand Panjandrum
@geg6:
Word. Without which we do not have Roberts and Alito. Imagine a Supreme Court with an appointment or two by Gore instead of the former Cheerleader.
Mudge
This dovetails nicely with the right’s feeling that since they lost the election, they can ignore laws they don’t like and make treasonous statements in the name (of their) patriotism.
BenA
@MattF: I had a very LONG circular argument with a hardcore born again in college about this. They don’t judge anyone… they just know the Truth… only God can judge.
The problem with people like that you can’t tell just by lookin’ at them… until they go all Kirk Cameron on yah.
Rick Massimo
When conservative judges are lying during their confirmation hearings, they make judging sound like basically a clerical job: You open up The Book That Has All the Laws In It, and you do what it says. Sounds like something any reasonably bright high school graduate could handle.
It’s a viewpoint that hopes that you forget to ask why, then, we have appeals courts. Why, for that matter, we even need more than one Supreme Court justice. Just look up The Law in The Book and apply it, right?
Of course, laws conflict. Laws are unclear, particularly given changing circumstances in the (sometimes) decades after they were written. That’s why there is such a thing as “case law.” Which the conservatives want you to forget exists. And that’s where judges use their knowledge, their background, their, um, judgment.
Yes, even conservatives too.
Yet another thing about the basic way America works that conservatives don’t understand or like.
JGabriel
NY Times, Byline:
Hey, that’s the same place Obama taught. Clearly, the author is commie!
[/teabag]
.
JGabriel
Elvis Elvisberg:
Or previous ruling, i.e., ignoring Stare Decisis.
Don’t get me wrong, sometimes statutes need to be invalidated, and previous rulings overturned – I’m just saying that they’re equal instances of activism.
.
Keith
@JGabriel:
Or a mafioso!
Robert Waldmann
Stone wrote a good column but he left out the clearest example. I don’t think it was Bush V Gore. It was the Seattle school districts decision.
The reckless anti federalist activist five (who call themselves the “constructionist” or “Federalist” group because why tell a lie when you can tell an outrageous lie) decided which schools students in Seattle attend.
They did so because the elected school board designed school districts aiming to achieve racial integration. The gang of five declared that the design of school districts must be color blind.
So here the Federalists imposed a Federal decision on local government on an issue usually handled on the local level *and* the unelected judges who claim that judges should defer to the elected branches over ruled the elected deliberative body.
No honest person of normal intelligence who knows about this decision can pretend to not know that the right wing activists on the court are extremely extraordinarily arrogantly activist.
El Cid
The modern conservative movement, apart from being hypocritical liars and labeling as “activist” any legal move they oppose, act as if the Constitution was a complete instruction manual such that the entire purpose of there being a legislature to make laws was some sort of mistake on the part of ‘the Founders’*.
*Of course there were a group of founders of the nation, but this sense is the modern conservative view of a group of costumed-up alien god superheroes who believed everything that Ayn Rand, Jerry Falwell, and the John Birch Society ever intuited.
danimal
It gets old watching Orrin Hatch and his minions piously intone that they simply want a reading of the constitution along with the intent of the founding fathers as the cornerstone of jurisprudence.
The founding fathers didn’t have an opinion on abortion, gay marriage, regulation of automatic rifles, nuclear terrorism, the Louisiana Purchase, blah, blah, blah. The world has changed; the issues evolved. Some original principles collided with each other as they were applied. And they didn’t always get it right the first time, either.
The sanctimonious pricks get away with it because the media and the public don’t understand how screwed up a line of reasoning the conservatives feed them. Judicial activism may have been a legitimate issue in the 1970’s (though I contend it is more of a early version of racial dog whistling), but this day the conservatives ARE the judicial activists and it certainly is time to challenge the consevamedias narrative.
Clark
@John Cole:
Fitting that you would note the Schiavo case. Wasn’t Schiavo the final straw for you and the Republican Party?
Mary
@JGabriel: Heh…actually, he kind of is. (Well, not actually, but he’s far and away the most left leaning professor at the law school. Of course, this is U Chicago we’re talking about, so that’s not saying all that much.)
Bob L
You know who else had activist judges; Adolph Hitler.
Activist judges are just like secular scientists; they arrogantly draw conclusions based on their own logic and reason instead properly drawing on a higher moral authority like God or Rush Limbaugh.
dj spellchecka
the thing about the roberts’ court isn’t just their ideology, it’s their partisanship…they render decisions as republicans moreso than as conservatives…gore v bush got there first of course, but w’s two picks cemented that reality
Bobby Thomson
@Robert Waldmann: This.
The Moar You Know
@steve: No thanks. I was born there, and my whole family is from there.
I get it just fine, and would prefer to never set foot in the damned place again.
Comrade Dread
I’ve had this conversation with conservatives, back during the health care debate, when I told them that if they truly believed it to be unconstitutional, we had a system of government in place which would allow them to appeal to the judiciary for redress.
I was then, amazingly, called a believer in the system.
To which I replied, well, yes, isn’t that what a conservative is supposed to be? And isn’t this the basis for your complaints about constitutionality?
The conservation went in circles from there, but it astounded me that people who call themselves conservatives often have little to no respect for the very thing they claim to be trying to preserve.
Marc with a C
“What the founders wanted” isn’t even a legitimate judicial philosophy to have, because while the “Founders” did agree to a broad, general framework known as the Constitution, they were also a petty, vindictive, highly opinionated, and self-righteous lot. As such, the Constitution is a COMPROMISE, not a collection of set-in-stone rulings passed down from a divinely infallible source.
And again, “judicial activism” is kinda like the term “political correctness:” basically shorthand for whatever it is wingers don’t like without regard for consistency (ie. “Telling it like it is” when it comes to minorities is just fine; “telling it like it is” when it comes to the troops: OMG TERRORIST HIPPY TRAITOR!!!).
A few examples:
1) There is no inherent right in the constitution to privacy when it comes to medical decisions, and as such abortions can be outlawed. Unless of course you’re planning on nationalizing healthcare, in which case the right to privacy is paramount.
2) Overturning decades of judicial precedent is bad– unless of course that judicial precedent involves invalidating local gun laws.
3) Federal control of the airwaves is bad when it may result in things like censorship of hate speech. But when it comes to stamping out obscenity and profanity, it’s a sacred governmental responsibility.
4) And of course, my Scalia favorite: cruel and unusual punishment is unconstitutional when it is being used to punish people for a crime they have comitted. But so long as you’re not punishing someone for a crime and just interrogating a suspect, it’s a-ok. It is, after all, what the founders would have wanted.
Stephen1947
There is an interpretation of “original intent” that explains why the rich need to be protected against the poor. All of our founding male parents were classically educated, i.e., they had to read a lot of Greek and Roman stuff. So they would be aware of some of the excesses of “pure” democracy practiced in Athens, when the majority (largely jobless) voted to exile rich “enemies of democracy” and were rewarded sometimes by sharing in the expropriated wealth of the exiled.
It’s a huge stretch from that insight based on history to rule that corporations should be treated as if they were humans, but it is part of the educated conservative mindset, and does have some validity.
Karmakin
Just as a side note, the reason why Bush v. Gore was a horrible horrible travesty isn’t how they decided. It’s that they said that what they decided only counts in this one specific narrow case and can never be used as precedent.
Would would BvG have done if it was broadly applied? It would have invalidated most elections nationwide overnight. Any election that in the same electoral pool that has multiple voting methods is a violation of equal protection. The differing margins of errors/spoiled between different voting methods create a situations where one vote counts more than others.
This effect in practice, actually creates a several % point swing towards conservative candidates, as upper class locations tend to have more modern..and just plain more..voting stations than lower class locations. Remember the video of long lines of people waiting in line to vote in Ohio in 2004? Assume that say 1/10th of those people got tired or had to leave before they got a chance to vote. How much does that swing the close election? (Remember that Ohio in 2004 was very close)
These are all very real problems for democracy in America. And they are problems that should have been dealt with in 2000, but the SC kicked the ball, not even down the road. They stomped it flat.
Edit:Just to let people know my position, the proper verdict for the SC would have been to stop the recount, and call for a nationwide revote in 6 months, with all voting pools making sure that they take steps to equalize MoE/accessibility as much as possible.
JGabriel
Stephen1947:
Ooh, can we do that?
.
Jack
…and liberals said mum when Barack Obama decided he had the authority to kill people without due process.
JGabriel
@Jack: Keith Olbermann and Glenn Greenwald.
That’s two liberals who criticized it, there are more, and it took less than a minute to find.
Doofus.
.
Geordie3
I have a question that has been troubling me for years. How can Clarence Thomas advocate using the original intent of the founders as the proper method of judicial interpretation? He must know that has some problems, since that three-fifths business appears early in Article 1, among other things.
I’ve never been able to figure this out. Can anyone shed some light on this? I would really appreciate it.
Geeno
Actually, Jack, I recall a fair amount of disgusted liberal bitching about that.
Tsulagi
Yeah, they really shot themselves in the dick with that one.
Work with a lot of Rs and know a fair number including in my family, but Schiavo was a “whoa” moment for most of them. The one-off Schiavo legislation may have a crowd pleaser with future teahadis among the socons, but not for other Rs. Especially with those who liked the idea of limited government and states rights. Shiavo showed they were quite happy and willing to make moral judgments for you and your family bringing the full weight of the federal government into your home.
WereBear
@Geordie3: You are assuming Clarence Thomas (along with the other conservative judges on the Court) arrives at his decisions based on a system of logical concepts which makes internal sense and is supported by legal scholarship.
That’s what’s confusing you. He does nothing of the kind!
Johnny B
Of course, just like conservative judges, Republicans in our national government aren’t “conservative” either. How long before it becomes abuntantly clear that what we have in the GOP is the modern Dixiecrat Party–which was true to its “Southern heritage” but never was “conservative.”
Rick Taylor
I was speaking with my brother recently, we were discussing how the Republican party has gone from a part we largely disagreed with to one that was batshit insane. My brother told me it was the Shiavo that seemed a turning point for him. That’s when he couldn’t believe they were doing what they were doing.
BombIranForChrist
I wonder how many air breathing americans actually believe that conservative judges are somehow more objective, esp. since Gore v. Bush.
Isn’t there data showing that the Supreme Court has suffered a pretty major blow to its prestige ever since Gore v. Bush, at least as compared to historic measures?
Just another failed institution.
ChrisB
What’s remarkable to me is how easily the phrase “liberal activist judges” has slipped into the lexicon. Republicans use the phrase every time they open their mouths and they’re rarely if ever called on it. The Republicans have succeeded in defining the term through relentless repetition.
Good calls, by the way, on the right wing backlash against the conservative judge who decided the Dover intelligent design case, the Supreme Court’s Seattle school decision, and of course Bush v. Gore.
Nutella
They’re the same with states rights. When a state is to the right of the feds they scream about states rights. When a state is to the left of the feds they want the feds to bring the hammer down, as in the Schiavo case.
This has been true for many years. The southern states insisted on states rights to protect their slavery laws but demanded that the feds enforce the fugitive slave law in the free states.
Nutella
@Geordie3:
Whoopi Goldberg called that out in about 2 seconds when somebody on the View tried to tell her that we should all be following the original constitution.
So a comic actress is a better constitutional scholar than a supreme court judge. Sad.
matoko_chan
I think a lot about a voter IQ gap….it certainly seems like there is an absence of ….i dunno….intellectual curiousity on the right? The right seems highly permeable to fearmongering and conspiracy theory.
The conservative base is uniformly religious….and there is an established negative correlation between higher religiousity and lower IQ.
I’d love to do the experimental design on that.
:)
Xenocrates
I believe I have found the answer. “Activist” is a “portmanteau word” as defined in Through the Looking Glass. ““Well ‘slithy’ means ‘lithe and slimy’ … you see it’s like a portmanteau — there are two meanings packed up into one word”. ” So “activist” has a dictionary meaning AND a new GOP meaning! It’s so simple, really…effing hypocrites.
Bootlegger
My favorite bit of conservative judicial activism is applying the interstate commerce clause, to commerce inside California, i.e. medical marijuana.
J. Michael Neal
@Marc with a C:
Just as important, the post-Civil War amendments changed the Constitution in some very fundamental ways. That was their intent, and they went through the amendment process, so no one can bitch about the legitimacy. Anyone who talks about “the Founders” but doesn’t include John Bingham, Thaddeus Stevens, William P. Fessenden and the other authors of the 14th Amendment is either ignorant or, more likely, lying.
Of course, a bunch of activist judges decided to effectively overturn the 14th Amendment, starting with Slaughterhouse.
ExtremismInTheDefenseOfLiberty
All I can say is, Duh. This has been pretty obvious for about the last 60 years.
Jim Pharo
Wait. If you’re suggesting the right-wing kooks such as Roberts and Alito should STOP saying the exact opposite of what they mean, how will we know what they mean? For me, it’s easy to diagnose the GOP because they advertise their problems in the form of accusations against others. If that dynamic were to change, we might actually have to expend a little effort to decode their rhetoric to see what they’re really about.
J. A. Baker
Let’s also not forget the bozo who put up the $250K bounty on Michael Schiavo, with a $50K bonus for bagging Judge Greer.
kay
@Jim Pharo:
Conservative legal theory was doomed right from the start.
It’s great to yammer about when their are liberals on the bench, but once they get some conservatives in, they actually have to apply the dogma. Uh-oh.
They write an opinion, and, ka-boom! The jig is up. They’re activists!
It was just a bunch of theory. Not practical. Veering on “silly”. IMO.
How did they imagine this crackpot theory was ever going to work? How were they going to get from “A” to “B”? They spent twenty years climbing up to that bench, and then they got there and realized actual adherence to the dogma put them in a sort of box. Of course they couldn’t follow it.
Polar Bear Squares
Eggs-xactly.
Rhayader
I agree completely, although you did conflate “small-c conservatives” with Republicans — something done just as often by the right. There is almost nothing going on in the Republican party that could be plausibly described as “conservative” according to the dictionary definition.
But, nitpicking aside, yes: the Republican definition of “judicial activism” has everything to do with ideology and nothing to do with judicial behavior or temperament.