So who are the activists? (SCOTUS)

[trof]

New York Times article about the definition of activist judges.

When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Here's the score, percentage of times voted to strike down:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?th&emc=th

Surprise, surprise.

[wicket]

1. Nice find!

:kick:

[trof]

3. Ain't it?

[wicket]

6. yup- just posted it on my blog

:D

[Skinner]

2. That is fascinating.

Thanks for posting this.

[trof]

4. Wait. You actually read this crap?

:hi:

[Skinner]

8. You bet.

I read a lot of crap on this website. (Shhh... Don't tell anyone... I actually have much more time to read it now that the Ask the Admins forum is gone.)

[Cats Against Frist]

5. Excellent -- Thanks.

[bullimiami]

7. doesnt get more active than corrupting law to put your own

president in office.

states rights and peoples rights mean less than bushs' rights apparently.

[trof]

9. an act "of great delicacy".

A bit more explanation from the article:

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

[On the Road]

10. What's Even Worse

is that a true originalist would not believe that the Supreme Court had the power to declare state laws unconstitutional. That power was not acknowledged until something like 1809, and was considered highly "activist" at the time.

[brainshrub]

11. Help me out here:

How are the judges ranked? Is Kennedy more conservative than Souter, for example?

[trof]

12. I'll try.

I don't think it's a conservative-liberal scorecard.
I think there are "activists" on both sides.
Here's what I understand from the article:
1. Since the congress is an elected body, representing and answerable to the people, and the SCOTUS isn't, then they should be VERY careful about striking down (declaring "unconstitutional") acts of congress. In the past, the court, itself has said as much. A very "delicate" matter.

2. It is interesting (and a bit surprising, at least to me) to learn that the more conservative judges have been more likely to go against congressional acts. At least that's the way it appears here.

It's usually the conservatives you hear railing against "activist judges", which I think is their code word for liberal judges.
But using the above definition of activist, it turns out the more conservative judges, at least on the SCOTUS are the more activist.
Does that make any sense?
whew

[brainshrub]

14. Who are the "conservative" judges?

Who are the "Liberal" judges? On a scale of 1-9, how conservative is Kennedy?

[trof]

15. I'd guess a 4 to 6?

Depending on the issue?
I think he's considered to be a moderate conservative.
Rhenquist, Scalia, and Thomas are probably 9s.

[DrCorday]

19. i'd say thomas is like a 10

I don't know.

I think nominating anyone for Supreme Court Justice for any reason other than their reputation is just partisan hackery.

[Czolgosz]

24. Kennedy is about the third LEAST conservative and about the fourth

most right wing.

[ClintonTyree]

16. The will of the people means nothing....

to these "activist", conservative tools. They rule from the bench, not accountable to anyone (except their corporate, conservative benefactors, of course) and have no regard for Americans' opinions.

The power that this group of shysters has accumulated over the years is frightening. The "selection" of bush to his first term being the case in point.

[Czolgosz]

23. Conservative vs. Liberal is really an out-of-date conceptual dichotomy.

Back when the country was generally headed in a progressive direction, the liberal-conservative distinction made sense. Liberals wanted reforms to grant women and minorities and workers rights. Conservatives wanted the status quo (i.e., women and minorities and workers have just enough rights already).

Liberalism (i.e., pro-reform) became correctly associated with progressive values, and conservatism (i.e., anti-reform) became fairly associated with the opposing view.

Now, we have a "pro-reform" political party (e.g., tort "reform," tax "reform," social security "reform," UN "reform," international "reform" through preemptive regime change and nation building, constitutional "reform" through homophobic amendments) that is using the tools of liberalism to accomplish anti-progressive ends.

It is not accurate to label the Bush administration as conservative because they are waging war on the status quo. Likewise, whenever you stand up against Bush's proposed dismantling of social security and say "it ain't broken, don't mess with it," that is an inherently conservative position.

In this context, I disapprove of labeling, say, Scalia a "conservative" judge. He's a right wing, for sure, but his wholehearted lack of respect for the precedential value of judicial decisions and legislation of the New Deal and Great Society eras is anything but conservative. Scalia wants to re-create the legal system in his own image, and this act of re-creation (in fact, and act of "re-creation" is antithetical to conservatism and the conservative antipathy toward change).

With that said, it is wrong to say that Justice Kennedy is more conservative than Justice Souter but it is correct to say that Justice Kennedy is more right wing than Justice Souter.

After four years of political philosophy, three years of law school, 15 years of law practice, and a board certification in appellate law, this is the best I can answer your question. Hope it helps.

[iam]

33. Out-of-date? I disagree

Liberalism vs conservatism is a valid expression today. It's actually very simple; Liberalism is that which distributes power, conservatism is that which concentrates power.
One could "reform" the constitution and eliminate the Bill of Rights that would concentrate (conserve) power, or one could reform the Constitution by expanding our rights which would distribute (liberate) power.
The label is most applicable to actions, not persons because people can behave like a Liberal one day and a conservative the next, so it's not "conservatives" that we battle, it's conservatism.
This truth allows one to escape the conundrum where a "Liberal" supports the same legislation as a "conservative" and we must distinguish between the two. The disinguishing factor is the issue or the act that both persons support. Does the ISSUE support Liberalism or conservatism. If it liberates power, support it. If the act conserves power, oppose it and ignore the polititian.

[Czolgosz]

34. Your point that the distribution of power versus the concentration of

power is a key issue. But the suggestion that liberalism is that which distributes power and conservatism is that which concentrates power is simply NOT consistent with the dictionary or political history definitions of liberalism or conservatism. The fair distribution of power is populism, not liberalism. Most often, the populism and liberalism go hand-in-hand, but not always. Still, I agree with you in all things except your use of that terminology.

[ikojo]

13. It's only judicial activism when the court acts on

behalf of the powerless (i.e., the lower 90% of the income earners in this country). When acting on behalf of the powerful and wealthy, they are seen as interpreting the constitution.

[McCamy Taylor]

17. Looks good, but definition is flawed. Activist means writing law.

When they strike down law because it is unConstitutional that isnt really writing law.

But it plays into Democratic hands, so WTG.

:dem:

[K-W]

28. How is striking down a law not writing the law?

You dont think the law changes when you edit or delete a law just as much as when you write a new one?

Meanwhile activist judge is just republican nonsense. They dont actually care about activism, they care about issues. They just cast liberal judges as 'activist' as a smokescreen.

[Ratty]

30. I totally agree

That's the first thing I thought about when I saw the article. This isn't my definition of activist judges. If using the conervatives' favorite term, strict constructionist, these judges should be limiting the scope of federal power by doing exactly what they're doing: holding congress in check by striking down laws which, in their view, the constitution does not permit them to make.

I dislike this article intensely. It really doesn't say anything, does it? It's taking totally unrelated statistics and tacking a misleading, nonsensical headline on top of it. An activist judge ignores the constitution in oder to further a political, economic or ideological agenda. This can be done by either upholding or striking lasw down! To simply focus on one facet is dishonest and meaningless. If congress passes a law banning flag burning and a justice votes to uphold it, that, in my opinion is an activist judge. Tacitly legislating by upholding an unconstitutional law.

[confludemocrat]

18. This is yetanother reason why these people must be countered at every turn

They have constructed this fiction over my lifetime-- by appearances on a principle of "strict constructionism"/anti-"judicial activism", but in reality it was simply a lying ploy to steal our democracy and put power in the hands of rightwing extremists and the monied. Now we face the prospect of having the door locked to all but those with the right skin color, amount of money or connections.

When will our leaders learn to fight back each time?

[trof]

20. I think I agree.

If you're saying that the constituion was written to be a fluid thing, to deal with changing times and mores, and not chiseled in stone for ever and ever, amen.

I'm hoping the original framers were smart enough to realize that.
It was a HUGE leap from previously "accepted" forms of government.
But then I'm a librul.
;-)

[confludemocrat]

22. Accusing others of activism, RW set up and did their own activism

all along. An historical, massive con job, a lesson for the future. Understanding this should be a source of motivation driving us to stop them this time. Yes, the Constitution clearly needed to move from Jim Crow which would never have been done away with by the ballot box, and this could only have come about by recognizing that it is a fluid thing.

[Yupster]

26. The original framers were smart enough

to know the Constitution would need to change.

That's why they put in the amendment process, and they used it quite a bit. Half of the amendments were done in the first 10 years or so.

[donheld]

21. great articule

Thanks for the post.

[jmcon007]

25. This is very intersting. Thanks for posting. And look at this:

I bumped into this site the other day and found it to be pretty interesting so I thought I'd pass it along for anyone who likes law theory.

http://legaltheorylexicon.blogspot.com/

It contains some thoughts similar to the above.

[Divine Discontent]

27. this is some SERIOUS

noteworthy research! this should be run as a commercial..

who's voting against our representatives to congress laws that our passed on behalf of the people??? those activist judges, you know 'em, Clarence Thomas, Antonin Scalia, & Billy Rehnquist!!!!!!!!!1


right wing a-holes. b*sh sucks

[Gronk Groks]

29. Sent Copy to Senator Reid

Interesting ammo for upcoming Supreme Court battle.
:toast:
Nice catch!!!!

[Name removed]

31. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Ratty]

32. Not very polite

I'm going to laugh my head off when the court is stacked with conservatives and I then hear liberals whine

Now that wasn't nice, was it?