Damn those activist judges! Damn them!

[KrazyHorse]

He's not even close to entertaining enough.

[MrFun]

What? You want your beer AND drink it, too?

[Sava]

I dunno, it was interesting listening to him tell me that my "faith" in science was the same as a fundamentalist religionist.

[Imran Siddiqui]

Originally posted by DinoDoc
I don't really see the big deal here. I think that it is good for conservatives to be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to almost unleashable powers of the elected branches of governments. The New London case was a sterling example of judicial restraint after all.

Just highlighting this post. It is dead on accurate and shows the danger of reflexive phrases like "judicial restraint", "legislating from the bench", "judicial activism", etc.

[Kuciwalker]

Originally posted by Zkribbler
It did, once upon a time. The nation followed by passing a specific constitutional amendment permit it.

Er, yeah, I know that, and I know that the income tax is inarguably constitutional by the 16th amendment, which is why I used it as an example.

Contrary to the implication of your statement, most judges try very hard to follow the law.

Er, my statement didn't imply that such a thing occured often, merely that it was possible and an example in which the Supreme Court would be unequivocally wrong.

[Kuciwalker]

Originally posted by Bosh
Then what, pray tell, does it correlate with?

It seems more and more that judicial activism is being used as nothing more than "judifying that I don't like" which is meaningless...

Interpreting laws against Congress's intention accounts for the vast majority of it.

[Kuciwalker]

Originally posted by Imran Siddiqui
No Kuci, KrazyHorse is right. What is constitutional is only what a majority of the Supreme Court says it is. You may have a different opinion, Hell, MOST people may have a different opinion, but on the issue of constitutionality, the current Supreme Court decides.

No. The argument that the Supreme Court has the power, therefore what it says is true, is fallacious. Congress has the power to remove all the Justices of the Supreme Court, and with the President has the power to stack the Court however they wish - by your reasoning, THEY are the arbiters of the Constitution then. By your reasoning, you can't argue for any ruling to be overturned because the ruling is per definition in accordance with the Constitution.

A later Supreme Court may overturn or Congress and the states may pass a Constitutional Amendment, but it has no impact on what is constitutionally permitted here and now.

Or Congress can impeach the Court.

[Colon™]

Doesn't the Supreme Court have to motivate its rulings? At least I assume that's the case.

[Sikander]

Originally posted by The Mad Viking
No, you are missing the point.

For years now, we have been listening to righties moan about liberal SCJs "legislating from the bench" whenever they strike down a law as unconstitutional.

They suggest that it is somehow improper.

The post shows that, in fact, this behaviour is twice as common among conservative SCJs.

So, if the practice of striking down laws based on comparing their basis to the constitution is "legislating from the bench", then in fact conservatice indulge in this much more often than liberals.

Apparently it is only "legislating from the bench" if you happen to personally disagree...

Otherwise its solid jurisprudence?

Aside from the crocodile tears shed by right wing politicians about such blatantly unconstitutional laws like those prohibiting flag burning etc. this is simply not true. The "legislating from the bench" charge comes mainly from decades ago when judges around the country were embarked on an unprecedented and sometimes ill-considered attemtps to personally undo whatever they saw as injustices. This occurred in many cases in relation to the causes of integration, women's rights, religious freedom etc.

Some of this "judicial activism" was simply applying common sense (imo) interpretations of the constitution (like banning school prayer) while much of it was extremely overwrought like the school bussing fiasco that saw in some cases judges taking over huge school districts and resulted in huge amounts of resources wasted and white flight that left race relations and integration in a worse state if anything. And of course Roe vs Wade. I'm pro choice myself, but that is a pretty amazing leap of logic.

[Kuciwalker]

Originally posted by Colon
Doesn't the Supreme Court have to motivate its rulings? At least I assume that's the case.

You mean justify them? Yes. So? Dred Scott had an opinion written justifying it; it was still wrong.

[Imran Siddiqui]

No. The argument that the Supreme Court has the power, therefore what it says is true, is fallacious. Congress has the power to remove all the Justices of the Supreme Court, and with the President has the power to stack the Court however they wish - by your reasoning, THEY are the arbiters of the Constitution then. By your reasoning, you can't argue for any ruling to be overturned because the ruling is per definition in accordance with the Constitution.

You completely miss the point. The Justices can be impeached or the court can be stacked. YET, still it is the province of the COURT to decide what is Constitutional or not.

And of course you can argue for a ruling to be overturned because whatever the current Court decides is Constitutional. It's kind of like in Monarchy, what the King says is law. But you can appeal to the King to change laws of prior Kings or the laws he passed regarding different circumstances. Whatever the King decides in that case will be law, to be added or replacing prior law.

[Kuciwalker]

You completely miss the point. The Justices can be impeached or the court can be stacked. YET, still it is the province of the COURT to decide what is Constitutional or not.

Doesn't mean they are always correct. The income tax is constitutional, whatever the Supreme Court says. They have the power to strike down laws (which derives originally from their ability to not enforce the law if they deem it unconstitutional), and they get to decide what is constitutional, but they aren't always correct.

And constitutional questions are only a small part of what the court actually does - mostly they interpret federal law. And in that especially they can "legislate from the bench" and be incorrect, by saying that a federal law says something that it does not, or interpreting it contrary to the intent of Congress.

[Imran Siddiqui]

Doesn't mean they are always correct.

What is 'correct' and what is Constitutional can be two completely different things .

mostly they interpret federal law.

Same applies... they decide what it means.

interpreting it contrary to the intent of Congress.

You do know there is a entire judicial philosophy that says the intent of Congress is irrelevant, it is the text that is the important thing (a la, Scalia).

[Kuciwalker]

Originally posted by Imran Siddiqui

Doesn't mean they are always correct.

What is 'correct' and what is Constitutional can be two completely different things .

"correct in their finding that X is Constitutional"

mostly they interpret federal law.

Same applies... they decide what it means.

Well, actually, Congress decides what it means. Congress just isn't the group that determines whether someone is in violation.

interpreting it contrary to the intent of Congress.

You do know there is a entire judicial philosophy that says the intent of Congress is irrelevant, it is the text that is the important thing (a la, Scalia).

Which forces Congress to waste enormous energy making sure that the text they write cannot possibly be interpreted any way other than how it was intended, and even then sometimes the judges - the activist ones - manage to twist it around.

That's the issue. A judge who because of ideology deliberately interprets a law contrary to Congress's intent and sometimes contrary to the clearest meaning of the text.

I have a specific example of this, but I can't recall it exactly - I'll post it later after I can ask my dad about it, since it's in a law he has to deal with a lot, IIRC.

[Imran Siddiqui]

"correct in their finding that X is Constitutional"

I reiterate, what is 'correct' and what is constitutional are two different things. Then again, every political ideology believe they are 'correct' and the SCOTUS is incorrect. The only one that matters is the SCOTUS interpretation.

Which forces Congress to waste enormous energy making sure that the text they write cannot possibly be interpreted any way other than how it was intended, and even then sometimes the judges - the activist ones - manage to twist it around.

Not at all. I think Scalia is right. The text is what matters. What a handful of Congressmen thinks that text means isn't good enough. Unless you can poll every Congressman to ask if they believe it meant the exact same thing.

Frankly, I think 'intent' is a very poor legal argument, mostly because you are going on the intent of a few sponsors of the bill, and not the people who voted on it. The text is the only thing that everyone agreed upon.

After all, it is the TEXT that is passed, not the intent.

Though I can see that people's argument that intent should be considered is reasonable. I just don't agree with it.