Judicial activism

[Bojack Horseman]

What is your definition of judicial activism? In my own opinion it's any judge who rules based on a political party's platform, the Bible, their ideology, or some mythical "original intent" of the Framers, who last I checked are all dead and unavailable to weigh in on modern politics, instead of the Constitution. Examples of this include Shelby County V. Holder, Bush V. Gore, Planned Parenthood V. Casey, Citizens United, D.C. V. Heller, Furman V. Georgia, and those are the ones I can think of.

I think the definition of an activist judge in today's modern politics is the opposite: a judge who rules based on the Constitution and not the Bible or an ideology or a political party's platform, namely the one belonging to the elephant.

[True Federalist (진정한 연방 주의자)]

As a general rule, I define judicial activism as when the judiciary strays from its role of making decisions based upon objective criteria and rules that the legislative branch can't be entrusted to make subjective decisions when there is no clear Constitutional justification for the court to intrude.  You mentioned Planned Parenthood V. Casey, but in my opinion Roe v. Wade was the activist decision and Planned Parenthood a faulty remedy for the faulty Roe.  Whether or not abortion should be allowed and if so, under what circumstances, depends upon the subjective definition of when does a human life begin.  The fact that we keep having to go back to the courts to examine the limits of first Roe and then Planned Parenthood is to me fairly solid evidence that SCOTUS has failed to use objective criteria in its decisions on this topic.

Unless one extrapolates from the Fourteenth Amendment definition of citizenship, which the Court declined to do, there is no Constitutional definition of when a human life begins and hence the issue should have been largely left to the legislative branch to decide and moreover with no Federal issue involved, it should have been left to the State legislatures to decide.

If SCOTUS had to stick its thumbs in the abortion pie in search of plums, it should have ruled that the Fourteenth Amendment definition of citizenship also implicitly defined the beginning of human life and therefore State regulation of abortion, save for the purpose of safeguarding the health of the woman, is an intrusion upon the woman's privacy at any stage of pregnancy prior to childbirth.

However I doubt there was anyone on the Court in 1973 who would have agreed with that definition philosophically. That no doubt kept them from considering such a decision and in any case it wouldn't have given the Court the power to further meddle in the issue as they gained by instead issuing an activist decision that usurped power from uncouth politicians and placed it in the hands of nine wise philosopher-kings.

[Deus Naturae]

In other words, your definition of judicial activism is any decision with an outcome you dislike?

[bedstuy]

It's not that simple.   People can have legitimate judicial opinions that you disagree with.  Not every conservative judge is trying to manipulate the law to fit Christian principles or Republican ideology.

In my opinion, these terms are fairly meaningless.  Usually judges should try to restrain themselves and keep to the judicial role.  Sometimes judicial activism is called for like in Brown v. Board.  There isn't any neat dividing line.

[True Federalist (진정한 연방 주의자)]

In other words, your definition of judicial activism is any decision with an outcome you dislike?

No.  If one were to write an abortion law, I think the principles put forth in Roe would be good policy by and large.  But judges are not there to decide policy; legislatures are.  The court in Roe invented out of whole cloth the definition of viability as the dividing line as it wrote the law in that case and then asserted that their subjective preference was objective truth.  And then later in Planned Parenthood, they made their then current subjective preferences into a new truth, supposedly as objective as the first.  When it comes to abortion SCOTUS has done its best to write good law.  The problem is, writing law is not what SCOTUS is supposed to do.

When it comes to the Constitution I tend to give deference to the legislative branch and to the States.

[Deus Naturae]

In other words, your definition of judicial activism is any decision with an outcome you dislike?

No.  If one were to write an abortion law, I think the principles put forth in Roe would be good policy by and large.  But judges are not there to decide policy; legislatures are.  The court in Roe invented out of whole cloth the definition of viability as the dividing line as it wrote the law in that case and then asserted that their subjective preference was objective truth.  And then later in Planned Parenthood, they made their then current subjective preferences into a new truth, supposedly as objective as the first.  When it comes to abortion SCOTUS has done its best to write good law.  The problem is, writing law is not what SCOTUS is supposed to do.

When it comes to the Constitution I tend to give deference to the legislative branch and to the States.

That was directed towards the OP.

[Bojack Horseman]

The court stated in Roe that it wasn't its place nor the legislatures' place to define when a fetus becomes a person, which I think is settled in the 14th Amendment when it defines a citizen as all persons born or naturalized.

I have a problem with the statement that despite the fact that a law violates the US Constitution, that simply because the people voted on it or the legislature passed the law means it's an "activist ruling" to strike it down, much like we're seeing here in Michigan with the recent gay marriage ruling.

The other problem is that when John Roberts cast the deciding vote to uphold the Affordable Care Act, he said he only did so because if he stuck to his ideology, the Supreme Court would lose all credibility.

[True Federalist (진정한 연방 주의자)]

The court stated in Roe that it wasn't its place nor the legislatures' place to define when a fetus becomes a person

Oh? Then whose place is it?  I'll admit to not having parsed every word of Roe, abortion is not a major issue for me, but it would be the height of disingenuousness to in the same opinion as one states it isn't their place to define it to at the same time effectively define it as excluding fetuses that have not yet reached viability by allowing abortion at any point up to that time.  By the very nature of the issue, decreeing that it is Constitutionally impermissible to ban abortion at certain stages of pregnancy is implicitly establishing a Constitution definition of when life begins.

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One can argue whether or not Windsor was activist, but once that ruling was issued by the Kennedy court, its application to the various State bans is straightforward and not activist at all.  As for Windsor itself, you'd have to think pretty much the entirety of SCOTUS' due process precedent is bogus and needs to be overturned in order to think that it was an activist ruling.  I don't think that.

(My own dislike of Windsor has nothing to do with the SSM issue or its non-existent activism, but because Kennedy weakened the dual sovereignty aspect of our federal system in order to produce a ruling that would overturn DOMA in a way that did not also cause an immediate striking down of SSM bans in all the States. So while Windsor was not activist, it was political in that he tailored his ruling to be something that would cause change in a less disruptive fashion.  Whether one thinks that sort of political judgement is something a judge should consider is a matter of taste.  Note that I said political, not ideological. Judges should never issue ideological rulings, but sometimes being a little politic can be a good thing.)

[Bojack Horseman]

From Roe,

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

[True Federalist (진정한 연방 주의자)]

From Roe,

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

And yet they gave an answer.  Roe only makes sense if one defines life as beginning at viability.  If they had no answer they should have deferred to the answer the Texas legislature chose.

[Bojack Horseman]

While I'll admit that I'm not big on the logic of the Due Process clause granting the fundamental right to privacy, I'm of the opinion that the Ninth Amendment does, and this overrides any silly question of when life begins.

[True Federalist (진정한 연방 주의자)]

While I'll admit that I'm not big on the logic of the Due Process clause granting the fundamental right to privacy, I'm of the opinion that the Ninth Amendment does, and this overrides any silly question of when life begins.

So you can kill people so long as you do it privately?  The question of when life begins is hardly silly.  You may think some of the answers people have are silly or wrong, but the question is dead serious.

[Badger]

In other words, your definition of judicial activism is any decision with an outcome you dislike?

In practice, that's how most people define it.

[True Federalist (진정한 연방 주의자)]

In other words, your definition of judicial activism is any decision with an outcome you dislike?

In practice, that's how most people define it.

Sorta like how most people are for federalism only when their party isn't in control of the national agenda.

[politicallefty]

I tend to avoid the term myself. It seems to be mostly used by those who disagree with a particular ruling.

However, if I had to pick out a notable ruling I'd really classify as judicial activism, it'd be Citizens United. It's not even the ruling I'd necessarily consider judicial activism. It's the the way the Supreme Court went about it. It decided on its own to turn a simple as-applied statutory challenge into a facial challenge attacking the constitutionality of campaign finance reform in and of itself. (The original Citizens United case was not asking for a broad constitutional ruling.)

[Bojack Horseman]

While I'll admit that I'm not big on the logic of the Due Process clause granting the fundamental right to privacy, I'm of the opinion that the Ninth Amendment does, and this overrides any silly question of when life begins.

So you can kill people so long as you do it privately?  The question of when life begins is hardly silly.  You may think some of the answers people have are silly or wrong, but the question is dead serious.

Until viability, it's not a person, it's a fetus. Every time you get a haircut or clip your nails, you're killing a clump of cells.

[True Federalist (진정한 연방 주의자)]

While I'll admit that I'm not big on the logic of the Due Process clause granting the fundamental right to privacy, I'm of the opinion that the Ninth Amendment does, and this overrides any silly question of when life begins.

So you can kill people so long as you do it privately?  The question of when life begins is hardly silly.  You may think some of the answers people have are silly or wrong, but the question is dead serious.

Until viability, it's not a person, it's a fetus. Every time you get a haircut or clip your nails, you're killing a clump of cells.

And just where in the Constitution does it say that a clump of cells is not a person until viability?  Hint:  It doesn't.  SCOTUS legislated that definition with Roe despite that fact that courts are not supposed to legislate.  Whether one agrees or disagrees with the law SCOTUS wrote then, it doesn't change that they usurped the role of the legislative branch in doing so.

(By the way, if you're killing cells when you get a haircut or clip your nails, you're definitely cutting way too close.  You shouldn't be drawing blood when you get them trimmed.)

[○∙◄☻¥tπ[╪AV┼cVê└]

The SCOTUS case American Tradition Partnership, Inc. v. Bullock was a particularly extreme case of judicial activism.

[True Federalist (진정한 연방 주의자)]

The SCOTUS case American Tradition Partnership, Inc. v. Bullock was a particularly extreme case of judicial activism.

Hardly.  that case was a straightforward application of Citizens United.  Feel free to argue that CU was a case of judicial activism, but once that precedent was set, the decision in ATP was predictable unless the court felt like reversing itself so soon.  Even the dissenters in ATP admitted as much.

[King]

I want my judiciary to be active and aggressive in it's check.

If people don't like it, then they can amend the Constitution.

[Oldiesfreak1854]

I guess I define "judicial activism" as a ruling based on political views rather than the law or even an actual judicial philosophy.  And it goes both ways, in favor of both the left and right.  Some cases I would use as examples would be the Civil Rights Cases, Plessy v. Ferguson, Roe v. Wade, and Justice Sotomayor's dissent in the recent Michigan affirmative action case.

Unfortunately, too many people on both sides simply use it to describe any decision they disagree with.

[SPC]

I want my judiciary to be active and aggressive in it's check.

If people don't like it, then they can amend the Constitution.

So said active judiciary can interpret such an amendment to support whatever point of view it desires?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I want my judiciary to be active and aggressive in it's check.

If people don't like it, then they can amend the Constitution.

So said active judiciary can interpret such an amendment to support whatever point of view it desires?

Somehow seeking to impose hard limits on the potential interpretations of any constitutional amendment external to the text of the amendment itself strikes me as the sort of thing that would inevitably create far more and vastly worse problems than it would solve.

[SPC]

I want my judiciary to be active and aggressive in it's check.

If people don't like it, then they can amend the Constitution.

So said active judiciary can interpret such an amendment to support whatever point of view it desires?

Somehow seeking to impose hard limits on the potential interpretations of any constitutional amendment external to the text of the amendment itself strikes me as the sort of thing that would inevitably create far more and vastly worse problems than it would solve.

The point was that amending the Constitution isn't really a redress for people that dislike an active judiciary since the same active judiciary that by definition does not stick to the literal meaning of the Constitution in its interpretation would also not be bound to interpret the amendment by its literal meaning.

I do not believe that judicial activism is the root of the problems of the judiciary; any ruling on a matter that is unprecedented is inherently going to be an activist decision, and it would be useless to have a judiciary that only issued rulings on matters with existing precedents. Rather, the fact that members of the judiciary are all appointees of the federal government is the source of the problem, as such a conflict of interest means that the judiciary will tend to favor the federal government in cases in which it is a party. Further, the fact that the judiciary portends itself to be the final authority on legislation provides moral hazard to the legislative branch, as they face no penalty for passing legally dubious legislation that will be disputed in the judiciary.

Granted, nullification poses the opposite problem of effectively divesting judicial authority of federal legislation in the legislative branches of state governments. While this would be preferable in the aspect of having a more decentralized procedure for judging federal legislation , it is still problematic for allowing elected officials to have judiciary authority, and consequently would likely have a systematic bias in favor of the authority of the state legislature. While I support nullification as a defensive measure against intrusive federal authority, it is likely not a long-term solution to such a problem. Logically, such an arrangement left uncontested by the federal government would lead either to outright secession or devolution to a loose confederation (neither of which I am opposed to). If one sees the preservation of a federal structure without allowing either the states or the federal government to overstep its authority, it may be best to prevent any level of government from being the final authority on the limits of its own powers, and thus cases in which the federal government is a party should be resolved by some mutually agreed-upon mediator.