Damn those activist judges! Damn them!

[Patroklos]

I don't know what you listen to, but yes, the right says that. They moan about "legislating from the bench". It happens every damn time a decision they don't like comes down.

But does it happen everytime a law, any law, is struck down?

No. It is not linked to the decision, but what the decision is about. Making Bosh's article ridiculous, and the measurement used pointless.

So what I said is accurate (ajbera, rather).

[KrazyHorse]

Originally posted by Imran Siddiqui

"Activism" occurs when a proper constitutional law is struck down, or an unconstitutional law is not struck down.

The question is what is a 'proper constitutional law' or an 'unconstitutional law'.

The answer is: whatever 5 memebers of the Supreme Court say it is.

[ajbera]

The figures given are only for those times when a jurist has voted a law as unconstitutional. The assumption is this is the only thing that should be taken into account when defining "activism." However, accusations of "activism" are usually shouted by the right when the left-leaning jurists choose to let pass a law that the right considers unconstitutional. So the percentages above are only for when a law is overturned, and doesn't take into account when a "bad" law is upheld, which seems (to me) to be when the right cries "activism" the most.

I'm really surprised to see Rehnquist and O'Connor so close in percentages. And what those numbers really tell me is that Thomas, Kennedy & Scalia are more strict than their peers about interpreting what is Constitutional and what ain't (a good thing, IMO).

Remember also that Constitutionality has absolutely nothing to do with whether or not a given law is "good" or "bad." There was a recent case that said a State couldn't execute a minor (forgive my ignorance of the details); I know of many opponents of capital punishment who said it was a bad law because it was unconstitutional, even though they embraced the effect. Similarly, Congress could pass a law outlawing the eating of peaches on Wednesdays, and it could very well be constitutional, but really stupid.

If you want to prevent the execution of minors, amend the Constitution, or get laws passed in the respective states saying you can't execute minors. Because 6 jurists consider it cruel and unusual doesn't mean it's unconstitutional. Put it to a vote. If enough American citizens consider it cruel and unusual, the practice will be outlawed on the federal level (amendment) or state level (state law). This honestly seems like a no-brainer to me.

I once asked the folks at National Review for examples of conservative "activism." The closest answer I got was the decision to hand Bush the Presidency in 2000. Liberals decried the decision, conservatives hailed it, though there have been some conservative articles debating the constitutionality of the decision.

In the end though I'd be happier for strict interpretation of the Constitution, and letting states figure it out for themselves if there's no clear-cut interpretation on a given matter. The SC kicks many issues back down to the states, or refuses to consider them.

[Apologies - my brain is still fuzzy from overindulging last night, and I don't have time to proofread my commenst for logical consistency. So if I said anything stupid regarding a topic I know little about (Constitutional law and the SC), I'm sorry.]

P.S. Holy cow, I just noticed I'm a prince! When did that happen?

[Bosh]

What does judicial review have to do with legislating from the bench?

Isn't that what conservatives mean by legislating from the bench? Or has "legislating from the bench" been newspeakized into "judicial review that I don't like?"

The figures given are only for those times when a jurist has voted a law as unconstitutional. The assumption is this is the only thing that should be taken into account when defining "activism." However, accusations of "activism" are usually shouted by the right when the left-leaning jurists choose to let pass a law that the right considers unconstitutional.

That's a very surreal definition of activism, usually activism means that you're trying to change things or actually do something.

Remember also that Constitutionality has absolutely nothing to do with whether or not a given law is "good" or "bad."

In reality yes, in the way that the term is often used, no. "Constitutional" has gotten as newspeakized as democracy, freedom, terrorism, socialism etc. etc.

Remember, I'm not saying that striking down laws as unconstitutional is bad. Personally, I'm far from being a liberal and I believe that the contortions that the constitution has been subjected to are pretty horrific (by judges of all stripes, parts of the Bill of Rights have been butchered pretty badly to give law enforcement freer reign) just that a lot of conservative rhetoric on "activist judges" is moronic.

[Patroklos]

Perhaps so, but using a moronic article with a moronic measuement that does not show or prove anything moronic is hardly the way to show that.

[Sava]

Originally posted by Patroklos
Perhaps so, but using a moronic article with a moronic measuement that does not show or prove anything moronic is hardly the way to show that.

the article just provides the FACTS


why do you IGNORE THE FACTS?

[Patroklos]

How are you ignoring facts while particpating in a thread predicated on the?

What do the facts presented have to do with the conclusion Sava?

[Sava]

Originally posted by Patroklos
How are you ignoring facts while particpating in a thread predicated on the?

What do the facts presented have to do with the conclusion Sava?

it is pretty obvious....

the facts say the conservative supreme court judges do more of the so called "judicial activism" that conservatives accuse liberal judges of...

[flash9286]

Originally posted by Sava




it is pretty obvious....

the facts say the conservative supreme court judges do more of the so called "judicial activism" that conservatives accuse liberal judges of...

I don't think we are ingoring the facts, we are just saying that overturning congressional provisions is not a valid measure of judicial activism.

[KrazyHorse]

Then what is?

[flash9286]

I really dont think there is a valid measure for judical activism, but personally think that a better measure would be examing how many times a justice goes against precedent. But even that one wouldnt be very good, since everybody has different opinons on what constiutes activism.

[KrazyHorse]

And everybody also has different ideas on what precedent means.

[Imran Siddiqui]

Originally posted by Patroklos
But does it happen everytime a law, any law, is struck down?

No. It is not linked to the decision, but what the decision is about. Making Bosh's article ridiculous, and the measurement used pointless.

So what I said is accurate (ajbera, rather).

Frankly, I'd consider anytime a law is struck down as 'legislating from the bench'. After all, the court is changing the law. The fact that the right are partisan hacks (like the left.. mind) in what they scream 'legislating from the bench' doesn't change what the words themselves mean.

Besides, I wonder when legislating from the bench because so bad... after all, we have a common law system.

[Odin]

Originally posted by Imran Siddiqui

Besides, I wonder when legislating from the bench because so bad... after all, we have a common law system.

[Kuciwalker]

Originally posted by Bosh
I wasn't saying that it's stupid for strike down laws that are unconstitutional, I was saying that's it's remarkably stupid for conservatives to ***** about judges "legislating from the bench" or being "activist" when conversative judges tend to be far more activist than liberal ones. Do you disagree?

Yes, since there's no correlation between activism and striking down laws.