Thomas most activist, Breyer least activist

[○∙◄☻¥tπ[╪AV┼cVê└]

Here's what fraction of the time they choose to strike down a Congressional law. The 4 most liberal judges are the least activist.

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?

[A18]

Judicial activists are judges who use the power of judicial review to overturn laws for the purpose of shaping government policy, rather than upholding the Constitution. It isn't just about striking down laws.

I'd be more interested in looking at state laws, anyway.

[Emsworth]

Judicial activists are judges who use the power of judicial review to overturn laws for the purpose of shaping government policy, rather than upholding the Constitution. It isn't just about striking down laws.

I absolutely agree. If Congress just happens to pass a series of unconstitutional laws, should judges just sit back and say "let's strike down X percent of them, because if we strike down more, we become activists"?

[○∙◄☻¥tπ[╪AV┼cVê└]

Judicial activists are judges who use the power of judicial review to overturn laws for the purpose of shaping government policy, rather than upholding the Constitution. It isn't just about striking down laws.

I'd be more interested in looking at state laws, anyway.

"Upholding the Constitution"? What do you mean by that? Do you support Marbury vs. Madison?

[Wakie]

Judicial activists are judges who use the power of judicial review to overturn laws for the purpose of shaping government policy, rather than upholding the Constitution. It isn't just about striking down laws.

I'd be more interested in looking at state laws, anyway.

Hmm ... actually in most arguments I've had with my conservative friends they argue that "Judicial Activism" is about the judiciary overturning the "will of the people".

Since the Constitution can be interpretted in different ways by different people don't you think it is kinda cheesy to argue that "judicial activists" are those who disagree with your particular take on it?

[A18]

Not my particular take, but the actual, informed interpretation of it.

Yes, you can interpret the "United States shall guarantee to every State in this Union a Republican Form of Government" to mean that John Kerry was not eligible to be elected president, and that every Democratic senator is not really a senator. And that would be judicial activism.

We're not talking about 'particular' takes; we're talking about completely making stuff up and ignoring framing intent, as in the above example, as in Roe v. Wade, as in upholding the New Deal, as in countless other decisions.

Tell me. Is it cheesy for me to call something wrong because I disagree with it?

[A18]

Hmm ... actually in most arguments I've had with my conservative friends they argue that "Judicial Activism" is about the judiciary overturning the "will of the people".

The will of which people?

http://en.wikipedia.org/wiki/Activism
Activism, in a general sense, can be described as intentional action to bring about social or political change.

Judicial activism is about making decisions in an intentional effort to bring about social or political change. In other words, the politicization of the judiciary.

[Wakie]

And who is to say what is the "actual, informed interpretation"?  I would think the foremost legal scholars in the land (aka the SCOTUS).

I think it is cheesy for folks to characterize every judicial decision with which they disagree as being "judicial activism".

A fair way to quantify "judicial activism" is what jfern did.

BTW, if you want a better definition of activism check out m-w.com.  Wikipedia is just a compilation of user commentaries.  I'm sure we can find entries there with which you would strongly disagree.

[Emsworth]

And who is to say what is the "actual, informed interpretation"?  I would think the foremost legal scholars in the land (aka the SCOTUS).

In one sense, the Constitution is what the Supreme Court says it is, because there is no further appeal.

In principle, however, it is possible for the Supreme Court to be utterly wrong. The Court has made absolutely horrendous decisions, constitutionally baseless like Dred Scott and Santa Clara v. Southern Pacific.

[A18]

And who is to say what is the "actual, informed interpretation"?

The people who wrote the document. Check out the Federalist Papers sometime.

[○∙◄☻¥tπ[╪AV┼cVê└]

Judicial activists are judges who use the power of judicial review to overturn laws for the purpose of shaping government policy, rather than upholding the Constitution. It isn't just about striking down laws.

I'd be more interested in looking at state laws, anyway.

"Upholding the Constitution"? What do you mean by that? Do you support Marbury vs. Madison?

Oh, well, since you won't answer, I'll just lay down my arguments for either answer.

YES: So you support judicial activism?
NO: So you don't support judges being able to declare a law UnConstitutional?

[A18]

I don't think Marbury v. Madison was an activist ruling. Marbury v. Madison comes right out of Hamilton in the Federalist Papers.

[○∙◄☻¥tπ[╪AV┼cVê└]

I don't think Marbury v. Madison was an activist ruling. Marbury v. Madison comes right out of Hamilton in the Federalist Papers.

So you're arguing that judicial review isn't activist?

Also, if you read here, there was some strange reasoning behind the ruling. If the judges had ruled how they felt like, Jefferson may have ignored the law.

http://en.wikipedia.org/wiki/Marbury_v._Madison

[A18]

Judicial review is not activist. You know, like I already said earlier in this topic. It's just that state nullification would be more ideal.

[○∙◄☻¥tπ[╪AV┼cVê└]

Judicial review is not activist. You know, like I already said earlier in this topic. It's just that state nullification would be more ideal.

Well, according to the article this was the first time it was done, and it wasn't done against until the activist Dred Scott ruling in 1857. What I'm arguing is that judicial review, which is standard practice now as opposed to 200 years ago, is basically judicial activism.

[A18]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

[○∙◄☻¥tπ[╪AV┼cVê└]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article. If you're so sure, why don't you find a source and add it to the article?

[Emsworth]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article.

With all due respect, jfern, that is possibly the worst argument I've ever heard.

[○∙◄☻¥tπ[╪AV┼cVê└]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article.

With all due respect, jfern, that is possibly the worst argument I've ever heard.

It wasn't an argument, I pointed out that he could add information to it. Or alternatively, he could just link to it here. Obviously the lack of information in a wiki article doesn't prove that he's wrong. You seem to be assuming that I was arguing something that I wasn't.

[Emsworth]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article.

With all due respect, jfern, that is possibly the worst argument I've ever heard.

It wasn't an argument, I pointed out that he could add information to it. Or alternatively, he could just link to it here. Obviously the lack of information in a wiki article doesn't prove that he's wrong. You seem to be assuming that I was arguing something that I wasn't.

Fair enough.

[A18]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article. If you're so sure, why don't you find a source and add it to the article?

Federalist No. 78

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[/b]

[○∙◄☻¥tπ[╪AV┼cVê└]

I disagree. The basis for it was laid by Hamilton in the Federalist Papers. This was understood when the document was ratified.

It's not in the wiki article. If you're so sure, why don't you find a source and add it to the article?

Federalist No. 78

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[/b]

OK, fair enough.
The only problem is that deciding what is Constitutional is subjective. The court has made many an activist conservative ruling like the Southern Pacific vs. Santa Clara county one.

[Wakie]

And who is to say what is the "actual, informed interpretation"?

The people who wrote the document. Check out the Federalist Papers sometime.

I have checked them out.  And there are 2 important points.

1. They don't address all issues and the authors are, unfortunately, dead.

2. If we go by them we have a "wall between church and state" which doesn't exactly jive with most Republican thinking right now.  In fact going with that view has led some to label judges as "activist".

[A18]

Separation of church and state is found nowhere in the Federalist Papers. You're completely clueless.

[Wakie]

Separation of church and state is found nowhere in the Federalist Papers. You're completely clueless.

Pardon me.  Jefferson made the famous "wall between church and state" in a letter to the Danbury Baptist Association of Connecticut.  My bad.  In the Federalist papers Hamilton just talks about how the President has no spirtual authority over the nation.