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Is Sotomayor a "Judicial Activist"?

The National Law Journal's Marcia Coyle reports on recent studies seeking to measure "judicial activism" by federal appellate judges, and what those studies conclude about Sonia Sotomayor. Based upon these studies, Judge Sotomayor does not appear to be particularly "activist" compared to other judges across a wide range of cases. Of course, in this area, much may depend on how one defines the term, and it is conceivable a judge could confine his or her "activism" to a confined set of cases or subject matter.

Coyle summarizes the conclusions of Frank Cross and Stephanie Lindquist in a second story here. There research is based upon their book, Measuring Judicial Activism, which Stephen Griffin wrote about here. Corey Yung also has a series of blog posts reporting his methodology and preliminary results at Concurring Opinions in this series of posts: 1, 2, 3, and 4.

Eli Rabett (www):
De gustibus non est disputandum - Jefferson Beauregard "Jeff" Sessions III
6.7.2009 7:56pm
Cato The Elder (mail):
Ah, the same Frank Cross extending me good faith advice is attempting to disseminate his own hackery that portrays Sotomayor in a good light! No wonder, he must have the conservative's best interests at heart in this nomination battle.
6.7.2009 8:36pm
Bored Lawyer:

Of course, in this area, much may depend on how one defines the term, and it is conceivable a judge could confine his or her “activism” to a confined set of cases or subject matter.


Most "studies" of activism, including this one, rank willingness to overturn a law (state, federal) or an executive decision as "activist."

That definition is a copout and not what is meant by the criticism of judges as "activist." If a law or executive order violates the Constitution -- and if the Constitutionality is raised by the litigant, then a judge or justice is duty bound to rule on that question, and if the answer is that the law is unconstitutional, rule that way.

Likewise, "overturning precedent" as a measure of activism is misleading. Which precedent? Suppose for 170 years the Court took one position, and then in 1960 the Court reversed course and adopted a different position (which let's say was then taken as settled in the next ten decisions of the Court on that issue over the next 20 years). Which is activist -- returning to the traditional understanding, or adhering to a 20 or 30 year old (or even 60 year old) line of cases?

These "studies" are really getting rather tedious. All they prove is that conservative judges and justices have a different view of the law than the liberal ones, who for several decades dominated the Court, but now don't. Shocking surprise!
6.7.2009 8:42pm
ArthurKirkland:
"nomination battle???"

Shouldn't someone opposing the nominee land at least a single punch before this process is termed a "skirmish," let alone a "battle?"
6.7.2009 8:48pm
frankcross (mail):
Cato, I don't have the conservative's best interests at heart. Or the liberals. It's trying to be objective about the numbers. Feel free to correct that. And I'm no more pro-Sotomayor than I was pro-Alito.

Bored Lawyer, we confront that in our book. Because there is no neutral definition of "correct" constitutional decisions, we can't measure the incorrect ones. We use the tests you suggest and two more simply to measure the degree to which justices overturn laws, reverse precedents, overturn Executive decisions, and expand justiciability.

Because you are correct, that the justices may properly hold unconstitutional laws unconstitutional, we don't claim that such activism is necessarily bad. We define activism as the expansion of judicial power, whether good or bad (it's not for us to decide on good and bad).

However, we do find interesting patterns. Some justices overrule conservative actions but not liberal ones. Some justices overrule liberal actions but not conservative ones. And some are fairly evenhanded ideologically, but they also show differences in how often they take these decisions.
6.7.2009 9:25pm
Duffy Pratt (mail):
Is the creation of new abstention doctrines (like Colorado River), or new areas of immunity, an example of judicial activism or judicial restraint?
6.7.2009 9:54pm
einhverfr (mail) (www):
frankcross wrote:

Because you are correct, that the justices may properly hold unconstitutional laws unconstitutional, we don't claim that such activism is necessarily bad. We define activism as the expansion of judicial power, whether good or bad (it's not for us to decide on good and bad).


But I don't see that as activist. Suppose tomorrow Congress passes a law stating that sexually suggestive images of minors are banned REGARDLESS of scientific, artistic, or political value. If the court overturns such a blatantly unconstitutional law, is that activist?

Suppose the court decides that the current obscenity exception to the first amendment is too vague to provide adequate due process protections.... Would that be activist?

It seems to me that such a definition of judicial activism is fundamentally flawed and that the only measure can be a tendency towards results-oriented jurisprudence.
6.7.2009 10:22pm
Dave N (mail):
As John wrote recently:
Oh for heaven's sake. Obama was going to nominate a wild-ass liberal and everybody knew it. She'll be replacing another one, and there is no stopping it. Can we move on?
In truth, I find these posts interesting. Keep them up.

And if Judge Sotomayor is not as activist as some other judges--that's a good thing to know.
6.7.2009 10:25pm
frankcross (mail):
einhverfr, you presume that activism is bad. We suggest that activism is merely the exercise of judicial power, whether good or bad. There are different definitions, ours can be studied empirically. We can't find a way to distinguish "good" decisions from "bad" ones.

But we do consider ideological disparities in these decisions that may be evidence of results-oriented jurisprudence.
6.7.2009 10:26pm
bushbasher:
"Of course, in this area, much may depend on how one defines the term, and it is conceivable a judge could confine his or her “activism” to a confined set of cases or subject matter."

do you regard scalia et al as having confined their activism to bush v gore, or does it have free rein?
6.7.2009 10:55pm
Paul Zrimsek (mail):
When people debate the merits of judicial nominees, they're concerned with the difference between good and bad decisions. If you have nothing to say on that subject, you might as well shut up and leave the discussion to those who do.
6.7.2009 10:57pm
G1:
Nice responses frank, you have me in agreement.
6.8.2009 12:31am
Doc Rampage (mail) (www):
frankcross, the problem is that the word "activist" came into currency as a criticism of certain types of judicial behavior, and that your redefinition is at odds with the definition that was intended in those criticisms. The effect of your redefinition, whether intended or not, is to protect the original activists from criticism by muddying the water for them to hide in.

I can't count the times that I have seen commenters on this blog alone respond to criticisms of activist judges (meant in the original sense) by constructing a strawman based on definitions like those that you use. And of course whoever wrote the original criticism can't just straighten out the misunderstanding, because now the commenter has a citation to "prove" what the word means. So now the argument devolves into an argument over what "activist" means and not about the lawless behavior of the judge.

This argument pattern is so common that I am convinced that it is a deliberate ploy of people on the Left to weigh down any criticism with so much weight of pointless argument that (1) people don't pay any attention and (2) no one wants to argue with them because it is so pointless.

And it is hard to believe that you are unaware of this pattern and were unaware that you would be contributing to it with your paper. Everyone else knew.
6.8.2009 12:41am
Pyrrho:
Doc Rampage:

You claim that the term "came into currency as a criticism of certain types of judicial behavior." This is really somewhat inaccurate. I don't think anybody who has used the term "judicial activism" pejoratively really has a specific definition of what type of judicial behavior they are referring to. The idea of an "active" court has been used in political science an legal academia since before it became a political buzzword, and it traditionally means a court exercising judicial power. The frequency of striking down acts of a legislature is one (very imperfect, mind you) way of measuring it.

Despite its imperfection, the measurement of percentages of laws struck down is somewhat helpful. "Activism," when contrasted with "judicial restraint," suggests a tendency towards, well, being active. Kelo can easily be criticized, but the term "judicial activism" does not really apply to it. One might argue that the majority showed too much restraint; it was hardly an "activist" decision in any sense. Legislatures don't frequently pass laws that are obviously or deliberately unconstitutional; if they do, the opinion will probably be unanimous. If it is not, then the justices voting to strike down the law are more "active" than the other judges, by definition. The fact that the politically-charged term "judicial activism" lacks any precision or definite meaning does not preclude others from attempting to define it. And the fact that the politically-charged term often lacks any rational relationship to the reality of "judicial activism" does not mean that others create a strawman by defining it in a logical way. This is particularly true by the fact that people like Frank Cross are openly acknowledging their definition of it, leaving anybody free to take it or leave it.

One poster suggests that "the only measure can be a tendency towards results-oriented jurisprudence." If this person can actually come up with a way of measuring this, I would give them a medal. Because I, for the life of me, cannot conceive of a measurement of this. It seems (to me) impossible to quantitatively measure what the justices would subjectively thinking. Furthermore, it seems to me there are a variety of "results" from any given legal decision, and I am unsure which one constitutes "activism." For example, Scalia acknowledges that he would not allow the original understanding to lead a decision to an evil result. Is a judge who wants to reach a certain conclusion in the case, and backs that conclusion up with impeccable legal reasoning based on original understanding an "activist"? What about a judge who thinks the original understanding conflicts with decades-old precedent? Which "result" that the judge would prefer - adherence to precedent or adherence to the original understanding, would caused the judge to be activist? What about a case where the judge finds one party sympathetic, but that party's victory would lead to a rule that conflicts with the judge's values? The simple fact is, every judicial decision is "results oriented" in some sense; the issue is the relative weight given to the various results that come out of the decision. Thus, besides the fact that the subjective intent of the judge is nearly impossible to gauge from an opinion (requiring excessive speculation, at best), there is no reason to think that the judge's subjective intent is relevant to whether the decision was "activist or not."

In short, if somebody can come up with a better quantitative measurement of "activism," I'd like to see it.
6.8.2009 1:36am
AnthonyJ (mail):

frankcross, the problem is that the word "activist" came into currency as a criticism of certain types of judicial behavior, and that your redefinition is at odds with the definition that was intended in those criticisms.

The problem is that the word 'activist' was not actually defined by the people using the original term, which means there is no way to actually determine whether the accusation is true or not. People come up with definitions out of a desire to see if the accusations bear any connection to reality.

The reason for not defining "activist judge", of course, is that any definition runs the risk of either (a) being provably false, or (b) looking petty and partisan. In original usage, as far as I can tell, "activist judge" is just a rhetorical keyword which means "judge who makes rulings I don't like".
6.8.2009 3:31am
AlanDownunder (mail):
The only valid test I can think of is one that correlates political predispositions with effects of decisions - a test unlikely to find favor here because it identifies Republican activists by the same test that identifies Democratic activists.
6.8.2009 4:10am
dsfsd (mail):
That definition is a copout and not what is meant by the criticism of judges as "activist." If a law or executive order violates the Constitution -- and if the Constitutionality is raised by the litigant, then a judge or justice is duty bound to rule on that question, and if the answer is that the law is unconstitutional, rule that way. 好秘书 我爱皮肤 中国公文网
6.8.2009 5:26am
NaG (mail):
The real problem is that most conservatives define "activism" in jurisprudence as any decision they disagree with.
6.8.2009 7:01am
pluribus:
Any effort to arrive at an objective definition of the term "activist" should be applauded. The word has been used, and miused, by judicial critics (almost exclusively on the right) for at least a generation. Their criticism suggests that the term has some objective reality. So what is that objective reality? A good start toward answering that question is to measure decisions in objective ways. Please, stop using "activist" to mean nothing more than judges who make "bad decisions" or "decisions I don't agree with," which is pretty much what it has meant up to now.
6.8.2009 8:44am
Paul Zrimsek (mail):
I hereby define an "activist" decision as one favoring a party whose name starts with a letter from the last half of the alphabet. This is even easier to quantify than Frank Cross' definition, which is of course the sign of a good definition. I'll settle for applause if no one wants to throw money.

Seriously, it's one thing to observe that a term is sometimes abused, and another to conclude that it never meant anything in the first place. It's comforting to believe that when your opponents criticize something it's merely on a whim, and that they have no reasons which you need engage; but usually when people call a judge's decision "activist" they'll make a good-faith effort to show how (and, optionally, speculate on why) he overstepped his authority. There's your definition. Pyrrho does a good job of explaining why this can be a tough judgment call, and why it doesn't lend itself to easy quantification, but this is a killing objection only to those for whom any question that can't be answered by a computer isn't worth asking.
6.8.2009 9:20am
Smooth, Like a Rhapsody (mail):
To the extent that NaG is wrong (and I do not know what that extent is) could someone (maybe Cross, since he seems to know what he means by "activist") please throw out an example of a decision that is "activist" and let the discussion proceed in that way; otherwise this becomes an argument over angels and pinheads (pun not really intended).
6.8.2009 9:21am
xx:
Paul, the problem with "overstepped his authority" isn't that its a "tough judgment call," its that there's no standard upon which to pass judgment. A judge's Constituonal authority is to exercise "the judicial Power." So, if a judge is doing anything judgelike, he's not being activist under your definition.

It could be, of course, that's there's an implied obligation to exercise "the judicial Power" correctly, fairly, etc.. But then, whether a judge is activist turns on whether you think a judge is acting correctly or fairly.
6.8.2009 9:57am
geokstr (mail):

NaG:
The real problem is that most conservatives define "activism" in jurisprudence as any decision they disagree with.

Gosh, you mean sort of like how liberals define "racist" and "homophobe" and "Nazi" and "right-wing extremist" and "stupid" and "chauvinist pig" and "capitalist roader" and "greedy" and "imperialist" and "lacking empathy" and.....ad nauseum?

ArthurKirkland:
"nomination battle???"

Shouldn't someone opposing the nominee land at least a single punch before this process is termed a "skirmish," let alone a "battle?"

Yeah, absolutely. You'd think by now we could find someone willing to get a million dollar book deal by making up stuff about pubic hairs and Coke cans, already.
6.8.2009 10:04am
not an activist (mail):
I have to agree with Bored Lawyer. When academics first starting redefining "judicial activist" from its original, populist-politics meaning, I thought they were just wasting time. But the new data on how often various judges over-rule legislatures, and how often they reverse under the different appellate standards is incredibly useful. Even fascinating at times.

But it's still besides the point for popular politics. For better and for worse, judicial activism means declaring inalienable constitutional rights when no such text appears in the constitution. In the popular mind, that started with Warren and Nixon ran against it. I'm not defending. I'm just describing.

It's been a very effective campaigning slogan for decades. Will it remain so?
6.8.2009 10:18am
Paul Zrimsek (mail):
"xx" proves only that if you recognize no limits on a judge's authority other than the requirement that he act judgey, you'll never have cause to suspect him of activism. This should come as no surprise to anyone. Note that this standard fails to capture even uncontroversial instances of activism. A trial judge who took it on himself to decide that a relevant Supreme Court precedent was wrongly decided would be exercising the judicial power; the problem is that he'd be exercising someone else's judicial power, not his own.

BMW v. Gore is a good example of judicial activism, for reasons set out in Scalia's dissent. It also shows that Cross' methodology is perhaps not quite as cut-and-dried as he'd like us to think. Which was the "conservative" side in this case?
6.8.2009 10:32am
frankcross (mail):
I'm well aware that I'm not using the common slogan about activism. Because I want to make people aware that it is meaningless. All it means is a decision you disagree with. Please be sufficiently self aware to realize that is your definition. But it's not helpful. As I try to keep saying, there is no such definition of rightness. If you have one, offer it up, and I'd be delighted to study it. The attack on judicial activism really began with Brown v. Bd., not with the Nixon era.

I think it is interesting and worthwhile to study the measure of judicial activism as I have measured it. If you disagree, you shouldn't buy the book.
6.8.2009 10:34am
xx:
""xx" proves only that if you recognize no limits on a judge's authority other than the requirement that he act judgey, you'll never have cause to suspect him of activism. This should come as no surprise to anyone."

Yes, that's the point. You claimed its easy to define an activist decision as one where the judge "overstepped his authority." That's meaningless, since you've offered no definition of a judge's authority, and the clearest definition is quite useless.

BMW v. Gore doesn't speak to overstepping authority. I understand Scalia's point to be that the majority shouldn't venture needlessly into a new area of regulation. That logic has more to do with prudence and consistency than with authority. Certainly sometimes judges can move into a new area without overstepping their authority. For example, if they are addressing the applicability of prior precedent to new technologies, such as fourth amendment law in an internet age.
6.8.2009 11:05am
Bored Lawyer:

Because I want to make people aware that it is meaningless. All it means is a decision you disagree with. Please be sufficiently self aware to realize that is your definition.


1. If you want to argue that, do so directly. What you have instead done is change the definition of "activist" to something else, and then used your new definition to "prove" something about the old definition. Sorry, it really proves nothing, other than a talent for obfuscation.

2. "Activism" does NOT mean a decision I disagree with. IMO, it is a matter of process -- a judge (or justice) willing to substitute his or her own view of what is just or proper policy in place of the law as it was adopted by the legislature or what the People adopted in the Constitution.

Practically, it means that the judge is willing to go beyond the text and history (and perhaps precedent) of the provision at issue and insert his or her own policy preferences.

Anthony Lewis, who used to write a column for the NY Times, described this view as a "Continuing Constitutional Convention" -- that the Supreme Court represents a continuation of that deliberative body deciding what is best for the nation. That was a moment of refreshing candor.

An excellent illustration of the difference between a "wrong" decision and an "activist" one is the Supreme Court's recent Heller decision. If one is convinced of the correctness of the majority opinion (as many here are), then the dissent was "wrong." But, to his credit, Justice Stevens engaged in what I view as a proper jurisprudential method -- determining the meaning of the 2d Amendment in light of its text and history, not in light of what one believes is the just or enlightened policy for the 21st century.
6.8.2009 11:07am
ArthurKirkland:


ArthurKirkland:
"nomination battle???"

Shouldn't someone opposing the nominee land at least a single punch before this process is termed a "skirmish," let alone a "battle?"


Yeah, absolutely. You'd think by now we could find someone willing to get a million dollar book deal by making up stuff about pubic hairs and Coke cans, already.


First, either the "Coke" comment is based on reliable information (concerning events that occurred a couple of decades ago) not yet part of the public record, or the author doesn't know what he is talking about. I assume the latter.

Second, there is no reason to label this nomination process a battle, at least so far. Unless a genuine problem is revealed -- which has not occurred yet, and is less likely to occur if Judge Sotomayor's opponents continue to devote their energy and time to inconsequential carping -- this nominee is destined to cruise to confirmation. She is not extreme in the manner that capsized the Bork nomination or made the Thomas vote close. She bears little resemblance to Harriet Miers. There has been no whisper of the type of issue that inclined Abe Fortas to resign.

If a substantial reason to object to confirmation exists, I hope it emerges. So far, however, this "battle" resembles the Steelers against a high school team.

The '70s Steelers, of course.
6.8.2009 11:09am
Paul Zrimsek (mail):
My suggested definition is only meaningless if you also believe that the very idea of limitations on a judge's authority is likewise meaningless. Since no one but (apparently) XX believes that, I can't worry too much about it.

The ironic thing is that the legal system itself is all about the application of legal principle to the facts of individual cases, with that application understood by all to be a non-trivial task. Why would anyone expect the assessment of all these individual judgments as activist or non-activist to be susceptible to a one-size-fits-all mechanical rule, or even to a set of them?
6.8.2009 11:22am
not an activist (mail):
the old definition is anything but meaningless. it may be contrary to your politics, it may be partisan, it may lack even-handedness, but its enormous success in popular politics proves that it's not meaningless. that's where i part company with the new academics on this issue. i love their new data on reversal rates. but it's idle to claim that the old term lacks any meaning when it so powerfully moves voters in one direction.
6.8.2009 12:06pm
AnthonyJ (mail):
Plenty of essentially factually meaningless political slogans have been successful -- in fact, it can be very useful, because it can give you some cover for dirty politics (i.e. it's a phrase that those 'in the know' recognize to mean something derogatory, but you can publicly deny that you really meant that), and because people naturally fill in with their minds what they want it to mean.

And yes, both parties do this. The Obama campaign was a masterwork of vague promises.
6.8.2009 12:34pm
NaG (mail):
I am sympathetic with Bored Lawyer's definition of judicial activism as a situation where a lawyer bases her decision on personal policy preferences over the law. However, at the SCOTUS level, policy preferences form a basis for decisionmaking, and in fact many constitutional cases involve a weighing of conflicting policy positions.

Let's take the 1st Amendment as an example. By its own language, that amendment enshrines a powerful directive opposing the imposition of limitations on speech. But as it has played out, the Court has recognized that there are certain policy preferences that cabin that right. For example, there's the policy in favor of keeping the peace that led to the ruling that "fighting words" are not protected under the 1st Amendment under Chaplinsky. I think most people would generally agree with that rule, although one could say that it would be "activist" to impose such a policy preference on an amendment that makes no mention of that policy, and is in fact quite clear on its face. As Justice Hugo Black always noted, "no law" means no law. Not much confusion there. And yet, policy preferences have since interceded.

I think all judges engage in this, even the most diehard textualist/originalist. Just about every conservative judge worries about officer safety when considering a 4th Amendment challenge, for example. And stare decisis is, in itself, a policy in favor of maintaining stability in the law. Justice Thomas, who is generally considered to be a pretty hardcore conservative, is probably the most willing on the Court to overturn prior opinions that he views as wrongly decided. His preference to get decisions "right" as opposed to maintaining the stability of the law is a policy one. And please note, I do not criticize him for this.

So, based on my ruminations above, I do not view "policy" itself as the only factor in determining whether a particular judge is activist. There are many policies that come into conflict when considering a particular law or constitutional right -- indeed, sometimes constitutional rights themselves go head-to-head -- and conservatives may favor certain policies that leftist judges do not, and vice-versa. But I am hard-pressed to find that to be "activism."

I hate devolving this into a "I know it when I see it" debate, but I feel strongly that Roe v. Wade is the epitome of judicial activism since it waded into "penumbras" and "emanations" to create a constitutional right out of nowhere. Regardless of how I feel about the policy created by the decision (a policy I, incidently, think was a good one), the rationale of the decision was simply awful. It just came off as though Justice Blackmun started with his conclusion and then worked backwards to find an excuse to uphold it. I think it would be fair to say that the same was true for the "per curiam" opinion in Bush v. Gore, but not for Chief Justice Rehnquist's concurrence. And, quite frankly, I think today's Caperton ruling was activist since, like Bush v. Gore, it placed such emphasis on the fact that the particular facts of the case were so "extraordinary," tipping us off that the majority decided first that the West Virginia Justice should have recused himself, and then went about searching for a rationale to support it. As they say, "bad facts make bad law," and Caperton may very well be the case that embodies that precept.

So I'm afraid that, beyond my view of judicial activism as a situation where the judge picks the winner first and worries about the rationale second, I don't really have a definition that might help our discussion.
6.8.2009 3:48pm
ArthurKirkland:
A number of good points in there, NaG.
6.8.2009 3:58pm
pluribus:
Bored Lawyer:


"Activism" does NOT mean a decision I disagree with. IMO, it is a matter of process -- a judge (or justice) willing to substitute his or her own view of what is just or proper policy in place of the law as it was adopted by the legislature or what the People adopted in the Constitution.

The circularity of this argument seemingly never ends. If you regard a decision as having been made by a judge who is "willing to substitute his or her own view of what is just or proper policy in place of the law as it was adopted by the legislature or what the People adopted in the Constitution," you are saying nothing more than you disagree with the decision. If you don't think the judge substituted his or her own view in that way, then you don't disagree with it. You are chasing your tail, and are doomed to find it, but nothing more.


Practically, it means that the judge is willing to go beyond the text and history (and perhaps precedent) of the provision at issue and insert his or her own policy preferences.

Your conclusion as to the judge's willingness again depends on whether you agree with the decision or not. There is no other objective method for determining such willingness.

An excellent illustration of the difference between a "wrong" decision and an "activist" one is the Supreme Court's recent Heller decision. If one is convinced of the correctness of the majority opinion (as many here are), then the dissent was "wrong."

No. A dissent is not a "decision" and can never be a "wrong decision." It is a statement of reasons for disagreeing with a decision. By many standards, a decision upholding a right not previously upheld by the Supreme Court (an individual right to bear arms), and so doing overturning a law passed by a popularly elected legislature (the DC council), would constitute an "activist" decision, regardless of whether or not you agree with the decision on principle. The Court was reaching out to overrule a legislative decision and declare a new right that, in the prebvious two centuries, had never been declared by the Supreme Court. You will find precious few conservatives, however, who will condemn the judges who rendered the Heller decision for being an activist judges. Why not? Because they agreed with the decision.
6.8.2009 4:16pm
xx:
"My suggested definition is only meaningless if you also believe that the very idea of limitations on a judge's authority is likewise meaningless. Since no one but (apparently) XX believes that, I can't worry too much about it. "

That makes no sense. There are plenty of meaningful concepts that are hard to define. "Justice," Fairness," etc.

If you proposed a statute that read "Be Fair," I could criticize it for being vague without diminishing the importance of fairness.
6.8.2009 4:19pm
NaG (mail):
pluribus: "By many standards, a decision upholding a right not previously upheld by the Supreme Court (an individual right to bear arms), and so doing overturning a law passed by a popularly elected legislature (the DC council), would constitute an 'activist' decision, regardless of whether or not you agree with the decision on principle. The Court was reaching out to overrule a legislative decision and declare a new right that, in the prebvious [sp] two centuries, had never been declared by the Supreme Court."

This characterization is plainly wrong. Even the dissenters in Heller agreed that the 2d Amendment conferred an individual right. Heck, even counsel for D.C., at oral argument, stated as such less than a minute into argument! Everyone who backed the "collective rights" view of the amendment grossly misread Miller and the language of the amendment itself.

Further, a constitutional right described by an amendment exists whether or not it has been "declared by the Supreme Court." By your logic, the 3d Amendment must not exist because the SCOTUS has not had occasion to hear a case seeking relief pursuant to that right, so U.S. troops must have free reign to occupy our homes for the time being.

The difference between the sides in Heller was this: both sides saw an individual right, but the majority saw that the right was incompatible with a law that banned the exercise of that right, and the dissenters saw various policies that they believed could take precedence over the right. On its face, the majority had the far easier rationalization to make -- there is no point to a constitutional right if a legislature can simply ban it. I have no doubt that bans on newspapers, places of worship, and or letter-writing, if implemented by a city, would similarily be struck down as violations of the 1st Amendment. Nobody is arguing that there are no limits, but merely that wholesale bans are unconstitutional. I think the dissenters, having abandoned the collective rights view, should have joined the majority in striking down the ban and saved their powder (so to speak) for the inevitable battle to come over exactly where the line should be drawn. But that's just me. Personally, I think trying to uphold the ban despite acknowledging the individual rights view was the far more tortured reasoning, but I'm not sure if it crossed into "activist" territory. Close, though.
6.8.2009 5:39pm
pluribus:
NaG (mail):

This characterization is plainly wrong. Even the dissenters in Heller agreed that the 2d Amendment conferred an individual right.

If nine judges areee, then it can't be an activist opinion, right? Even when the decision had never before been made in the history of the Supreme Court? Even when appeals courts had previously decided otherwise. Even when the Supreme Court's Miller decision seemed (although not clearly) to tilt in the opposite direction? Nine judges say it (although some of them only in dissent)--so it can't be activist. The definition of "activist decision" now becomes "a new decision, establishing new rights, or enforcing those rights in a new way, and overturning a legislative enactment, that is supported by nine judges." Sorry, that means nothing more to me than what has been pointed out before: You agreed with the decision, so it couldn't be activist.

But that's just me.
You and the others who applaud Heller.

Personally, I think trying to uphold the ban despite acknowledging the individual rights view was the far more tortured reasoning, but I'm not sure if it crossed into "activist" territory.

That's a large part of the problem. Deciding whether a decision is "activist" or not should not be a personal thing. It should be susceptible of some sort of objective definition, or it is devoid of any real meaning. As I understand it, frankcross and his co-author are making an effort to contribute to an objective definition, however imperfect the result may be.
6.8.2009 6:45pm
NaG (mail):
pluribus: You fail to acknowledge that (1) the Supreme Court had not been asked, up to that point, whether the 2d Amendment conferred an individual right or not, so it is unfair for you to fault the Court for not addressing previously an issue that it had not been given the chance to review, (2) there was a circuit split on the issue -- both the D.C. and 5th Circuit Courts had found there was an individual right conferred, and (3) Miller did not consider the specific issue of what kind of right the 2d Amendment conveyed. Your speculation of that decision's "tilt" is of no use here.

There are plenty of decisions I disagree with that I do not consider to be activist. In fact, I think the vast majority of all opinions are not activist. Truly activist decisions are a relative rarity. Are there opinions I agree with that I consider to be activist? Sure: Lochner comes to mind. I agree with the underlying policy, but I think the Court was also overstepping its bounds into policy territory on that decision. So, you can take your activism-is-only-what-you-disagree-with argument and, respectfully, stuff it.

I frankly don't think it is possible to come up with an "objective" test for activism, because the issues and decisions we are analyzing do not submit to simple quantification and measurement. I have provided my definition of activism, which suffers from the obvious problem that judges never come forth and admit that, yeah, we used the law only to get to the result we wanted, is impossible. But if they did, that would be it.
6.8.2009 8:09pm
NaG (mail):
pluribus: You fail to acknowledge that (1) the Supreme Court had not been asked, up to that point, whether the 2d Amendment conferred an individual right or not, so it is unfair for you to fault the Court for not addressing previously an issue that it had not been given the chance to review, (2) there was a circuit split on the issue -- both the D.C. and 5th Circuit Courts had found there was an individual right conferred, and (3) Miller did not consider the specific issue of what kind of right the 2d Amendment conveyed. Your speculation of that decision's "tilt" is of no use here.

There are plenty of decisions I disagree with that I do not consider to be activist. In fact, I think the vast majority of all opinions are not activist. Truly activist decisions are a relative rarity. Are there opinions I agree with that I consider to be activist? Sure: Lochner comes to mind. I agree with the underlying policy, but I think the Court was also overstepping its bounds into policy territory on that decision. So, you can take your activism-is-only-what-you-disagree-with argument and, respectfully, stuff it.

I frankly don't think it is possible to come up with an "objective" test for activism, because the issues and decisions we are analyzing do not submit to simple quantification and measurement. I have provided my definition of activism, which suffers from the obvious problem that judges never come forth and admit that, yeah, we used the law only to get to the result we wanted, is impossible. But if they did, that would be it.
6.8.2009 8:09pm
Bored Lawyer:

The circularity of this argument seemingly never ends. If you regard a decision as having been made by a judge who is "willing to substitute his or her own view of what is just or proper policy in place of the law as it was adopted by the legislature or what the People adopted in the Constitution," you are saying nothing more than you disagree with the decision. If you don't think the judge substituted his or her own view in that way, then you don't disagree with it. You are chasing your tail, and are doomed to find it, but nothing more.


No, I think I have provided a reasoned basis for distinguishing between decisions I disagree with and those which are activist.

Another example (perhaps a reverse example) is BMW v. Gore and its progeny. I agree with its result and wish Congress or some state legislatures would enact it into law. But I agree with Justice Scalia that there is nothing in the text or history of the Constituion which mandates limits on punitive damages in civil cases.


You will find precious few conservatives, however, who will condemn the judges who rendered the Heller decision for being an activist judges. Why not? Because they agreed with the decision.


No, because they believe the 2nd Amendment is a right like any other in the Bill of Rights, and restricts Congress' power to act legislation. That the Supreme Court has not had prior occassion to so rule does not mean that a postive right enacted by the People should be consigned to the dustbin of history because we don't like it.
6.8.2009 8:38pm
Bored Lawyer:

I frankly don't think it is possible to come up with an "objective" test for activism, because the issues and decisions we are analyzing do not submit to simple quantification and measurement. I have provided my definition of activism, which suffers from the obvious problem that judges never come forth and admit that, yeah, we used the law only to get to the result we wanted, is impossible. But if they did, that would be it.


Agree with you NaG. Except I did provide the example of Anthony Lewis, who described the Supreme Court as a Continuing Constitutional Convention. That was a moment of candor you will often not see.
6.8.2009 8:40pm
Doc Rampage (mail) (www):
The criticisms of activist judges are based on criticisms of specific decisions where the judges have overstepped their authority in pursuit of political ends. Even if there were no precise and unambiguous definition of the word "activist", those individual criticisms would stand or fall on their own. The demand for a general definition is a rhetorical ploy intended to distract from the specific misbehavior. Most words do not have perfectly precise and unambiguous meanings.

These specific criticisms are not simply of the decisions that conservatives don't like. That is a strawman argument. The honest way to counter conservative arguments about activist judges would be to argue in favor of the specific decisions that conservatives criticize. Argue, for example, that the Constitution really does have an abortion clause that can only be seen by an appropriately wise and perceptive person.
6.9.2009 12:01am
NaG (mail):
Doc Rampage: "The honest way to counter conservative arguments about activist judges would be to argue in favor of the specific decisions that conservatives criticize. Argue, for example, that the Constitution really does have an abortion clause that can only be seen by an appropriately wise and perceptive person."

You forgot to add [/sarcasm] to the end of your paragraph.
6.9.2009 4:56am

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