Judicial Activism = "Judgifying I don't like."

[Stu Gotz]

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act ''of great delicacy, and only to be performed where the repugnancy is clear.'' Until 1991, the court struck down an average of one Congressional statute every two years. Between 1791 (the court's founding) and 1858, only two such invalidations occurred.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H.W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

One conclusion our data suggests is that those justices often considered more ''liberal'' -- Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens -- vote least frequently to overturn Congressional statutes, while those often labeled ''conservative'' vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most 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%

[jump]

Hmm, interesting data. Thanks for the post.

[Core Shot]

Awesome data that proves exactly the opposite of what you claim it does.

You completely mis-understand the concept of "strict construction" in interpreting the constitution.
You apparantly were sleeping in high school civics when the balance of powers was discussed.

The senate and house are power hungry freaks acting at the whim of their constituents (and more truthfully, their financial contributors). They need to be held in check quite often. This is the nature of our system.

When a statute is overturned, it is usually re-enacted with relatively minor changes and passes constitutional muster the next time around. If it is unconstitutional at the core, then you always have the option of amending the constitution.

This is an essential balance of power.
Without it, congress will have no check.

You consider these judges "activist" but you misunderstand the origin and meaning of that term. "Activist" judges are those that find new rights in the constitution, that they believe out of their own personal ideas to be the right thing. That function is best left to the elected body, and not to a lifetime appointed justice.

Apparantly Breyer never met a statute he didn't like.

[Grange]

Didn't conservatives frequently refer to the State Supreme Court of Massachusetts as Activist Judges because they struck down a law that made it illegal for homosexuals to marry? So which type of judge is called an activist judge? One that usually allows laws enacted by the Legislature to stand or one that usually declares them unconstitutional?

As I said before "strict consturction" is just a buzz term by the conservatives. If the judge rules on the side that they support then they are a "strict constructionist" if not the judge is labeled an "Activist Judge". The authors of the constitution probably never thought about many of the issues of today when they wrote the document so how can a judge interpret what the authors would want if they never contemplated the issue?

[lax]

not most activist, most instituionalist
activist judges overturn previous laws and precedents

the fact that the more right you are the more you listen to congress is still a fucked up idea

[MeatPuppet]

So which type of judge is called an activist judge? One that usually allows laws enacted by the Legislature to stand or one that usually declares them unconstitutional?

Wether a judge strikes down a law or lets it stand has nothing whatsoever to do with him being an "activist" judge. It's the reasoning behind the decision, not the decision itself, that will label him as such. A judge has one job and one job only; that is, to see that the constitution is not violated by the actions of the other two branches of government. If an issue comes before the court and the judge can find no violation of the constitution has taken place than the law should stand. If the judge begins siteing international law, "changeing social norms", his own values, or anything else in his decision, other than the constitution(or prior court decisions and law that has already passed constutional muster), than he would be considered to be an activist judge. It's not the job of a judge to reflect the will or values of the people, that is the job of the legislature. That's why congress goes through a regular election cycle and the supreme court does not. The will of the people changes on a regular basis, the constitution does not. The government is set up to reflect this.

Despite what an alarming number of people think, America is not a democracy, it is a democratic republic. This kind of system only works if each branch of the government does what it is intended to do and nothing more.

As I said before "strict consturction" is just a buzz term by the conservatives. If the judge rules on the side that they support then they are a "strict constructionist" if not the judge is labeled an "Activist Judge".

It would be easy and convient for many to dismiss that concept but words have meaning and some people are not so sloppy as you make them out to be. Even as I write this I know that some people are that sloppy and self serveing. But those people exist on both sides and should not be taken seriously. Both sides have a substantial core to them and a lot of fluff floating around that core. Attacking the fluff only makes you (generic you) seem simple minded. If you can't see the core through all the fluff(on either side), then perhaps you *are* simple minded or lazy, or both.

The authors of the constitution probably never thought about many of the issues of today when they wrote the document so how can a judge interpret what the authors would want if they never contemplated the issue?

The constitution is a set of principles. Those principles apply to the structure of the government, the interaction of the government with the people, and human rights. Those rights have not changed in the 200odd years since the document was written, and the government has changed only marginally.

The authors never envisioned television or radio, yet both are covered under the first ammendment. Why? Because they are *extensions* of something addressed by the authors, that is, speech. It is the belief of many(myself included) that everything that happens today in America, in some way is covered by the principles in the constitution. If we run into something truely novel that is not covered by those principles than the constitution allows for *any* kind of changes the people see fit through the ammendment process.

The problem is, too many people in the minority are trying to impose their beliefs on the majority through the judicial branch of government. They don't have the numbers to hold congress or put their guy in the presidency so they try to do an end run around the majority and get judges in place who will reflect their views. That is just plain wrong, that's not how this country is set up to work.

I know this is a long post but it is a complex subject and not easily condensed to 8 second sound bites.

[Grange]

Whether a judge strikes down a law or lets it stand has nothing whatsoever to do with him being an "activist" judge. It's the reasoning behind the decision, not the decision itself that will label him as such. A judge has one job and one job only; that is, to see that the constitution is not violated by the actions of the other two branches of government. If an issue comes before the court and the judge can find no violation of the constitution has taken place than the law should stand.

Sound reasonable to me. That's just what the Massachusetts’s Supreme Court did. They struck down the law because they felt it violated the constitution. It's just that the conservatives didn't like their interpretation.

If the judge begins siteing international law, "changeing social norms", his own values, or anything else in his decision, other than the constitution(or prior court decisions and law that has already passed constutional muster), than he would be considered to be an activist judge. It's not the job of a judge to reflect the will or values of the people, that is the job of the legislature. That's why congress goes through a regular election cycle and the supreme court does not. The will of the people changes on a regular basis, the constitution does not. The government is set up to reflect this.

I don't know the context of Breyer's (I believe) citation of international law so I can't speak specifically to that point. If a judge started justifying his decisions based on his own values then he should be considered an "activist judge". But many of the judges being labeled "activist" are not doing that. They are interpreting the constitution differently than the conservatives and they don't like it. When the Supreme Court ruled in favor of the municipality in the recent eminent domain for private development case they gave constitutional reasoning for their decision. Where in the majority opinion of the can you find that the majority used their personal values and ignored the Constitution? Now I don't like the decision at all and think it was wrong, but I'm not calling those judges "activist judges". They interpreted Constitution differently than I would have liked but that doesn't make them "activist judges".

You mention prior court decisions and laws that pass constitutional muster. Who makes the determination whether or not it passes constitutional muster? The higher court judges do, which is why we have the appeals.

Isn't the Constitution "for the people, by the people"? The Constitution is a living document and does evolve. If it wasn't intended to change then we wouldn't be able to make constitutional amendments. Using the Constitution as a finished document is not the right way to go in my opinion.

It would be easy and convient for many to dismiss that concept but words have meaning and some people are not so sloppy as you make them out to be. Even as I write this I know that some people are that sloppy and self serveing. But those people exist on both sides and should not be taken seriously. Both sides have a substantial core to them and a lot of fluff floating around that core. Attacking the fluff only makes you (generic you) seem simple minded. If you can't see the core through all the fluff(on either side), then perhaps you *are* simple minded or lazy, or both.

But it is the people behind the fluff that are making a big deal out of a Judge's decision if it doesn't go their way. Those people have a lot of power. They are trying to amend the Constitution to reflect their own opinions regardless of whether or not it is actually constitutional.

The constitution is a set of principles. Those principles apply to the structure of the government, the interaction of the government with the people, and human rights. Those rights have not changed in the 200odd years since the document was written, and the government has changed only marginally.

The Constitution has changed and its principles have been modified through Amendments. Women were given the right to vote is just one example. The Constitution is a living document.

The authors never envisioned television or radio, yet both are covered under the first ammendment. Why? Because they are *extensions* of something addressed by the authors, that is, speech. It is the belief of many(myself included) that everything that happens today in America, in some way is covered by the principles in the constitution. If we run into something truely novel that is not covered by those principles than the constitution allows for *any* kind of changes the people see fit through the ammendment process.

Your word extensions is just another word for interpretation. Many people believe that the Constitution gives the citizens the right to privacy through the fourth amendment where it mentions illegal search and seizure even though there is no direct language saying "right to privacy". That is an interpretation or extension as you call it.

The problem is, too many people in the minority are trying to impose their beliefs on the majority through the judicial branch of government. They don't have the numbers to hold congress or put their guy in the presidency so they try to do an end run around the majority and get judges in place who will reflect their views. That is just plain wrong, that's not how this country is set up to work.

Sounds like you’re claiming that many of social issues the liberal are fighting for are not supported by the majority. From the polls I've seen over the years from abortion to the right to die indicate the majority supports the liberal positions.

You want to talk about an end around look no further than our Congress. Look at the Terri Schiavo case in Florida. Forget about the majority opinion on the issue and look at the opinions put out by the courts. The conservatives in the congress didn't like decision and tried go trump the state's authority by passing a federal law in which the President signed immediately. What happened to states rights granted in the Constitution? I think the congress was being an "activist" on that issue.