August 15, 2005

Justice Sunday II.

I contemplated attending "Justice Sunday II," a rally, held yesterday at a church in Nashville, aimed at educating evangelical Christians about the U.S. Supreme Court.
Many of the speeches targeted the Supreme Court's power and what the writers of the Constitution intended the justices' role to be.

"All wisdom does not reside in nine persons in black robes," House Majority Leader Tom DeLay told the crowd. "The Constitution is clear on the point that the power to make laws is vested on Congress."

The president of The Catholic League, Bill Donahue, suggested a constitutional amendment to say that "unless a judicial vote is unanimous, you cannot overturn a law created by Congress."

The court is trying to "take the hearts and souls of our culture," he said.

Dobson evoked the framers of the Constitution, saying: "These activist, unelected judges believe they know better than the American people about the direction the country should go. The framers of our great nation did not intend for the courts to have absolute and final power over us."
This familiar rhetoric would drive me crazy to have to sit through, I must say. There's no detail or serious analysis of the kind that would be interesting to someone who has studied law. These are ridiculous overstatements, and I'd be embarrassed to be sitting still listening to such empty jabbering.

Why did I consider going? I received an invitation, offering to pay my expenses. Unlike Jeff Jarvis, I didn't consider this an ethical challenge. I'm not a journalist. I'm a law professor. Lawprofs get invited to conferences and have their expenses paid all the time. Jarvis thinks there's a problem when an organization essentially pays to have its event covered. I don't object when some law school pays my way to a symposium, though I suppose I could view it as their self-promotion.

But I didn't go, partly because I'm busy, but partly because the content of the speeches would be very tedious to me, and the blogging I would do would be about the people. It would be a very strange milieu for me. Describing it and my reaction to it would be quite intriguing, but it was much too much trouble for me to go to to feel as uneasy as I imagined I would.

Charmaine Yoest was there and also has links to all the other bloggers who were there.

Here's Captain Ed's live-blog of the event. I'm going to read through this and think about what it would have been like for me to be on-site. Excerpts:
6:35 - Tony Perkins pushing the "Save The Court" kit. He wants people to hold small meetings in their homes to play the DVD of this program. It's free, I think. They're also promoting Ten Commandment bookk covers for school textbooks. It sounds clever, but can you imagine going to a public school and having your parents make you use them? You'd need body armor to get through the day.

6:38 - We have another reference to a 'right' to homosexual sodomy. I'm no fan of the Lawrence decision, but why pick on 'homosexual' sodomy? It sounds like sodomy doesn't bother them at all, just the homosexuals. Can we just drop the footstamping about homosexuality?...

6:58 - Zell Miller, for once, got a chance to sound calmer than the act he preceded. He gave a good speech, exhorting the audience to be "doers of the Word" and not just listeners. Very impressive.

7:03 - Jett Williams cut her song a bit short; according to the schedule we have, the program may be running a couple of minutes long. Now we have Phyllis Schlafly speaking, talking about judicial supremacy. She talks about the "heresy" of the notion that the Supreme Court decisions are the supreme law of the land. "Heresy", I think, is a particularly bad choice of words here.

7:08 - Phyllis does better with her baseball analogy than Tony Perkins did with his. She pointed out that umpires can't change the rules by, say, calling batters out with only two strikes. I said "better", not "great".
It sounds as though the event was well run, but I'm hardly sorry I wasn't there. The obsession with homosexuality is tiresome – quite aside from its wrongheadedness. And "judicial activism" really is a bland topic, even though people get all excited about it. We all want judges to do some things and not others. One of the things the speakers complained about was the Kelo case, but that was an example of restraint, not activism. The Court declined to enforce a right. And these speakers don't like too much Establishment Clause enforcement, but I'll bet they moan about not enough Free Exercise protection.

It doesn't sound to me as though the speakers penetrated one millimeter into the political veneer. I detect no interest in a real understanding of law and courts. Complaining about the courts being too political, they are too political.

22 comments:

Sloanasaurus said...

I agree that the Judicial Activism criticism is cliche, but we should not pooh pooh the criticsm of judicial activism. We should not just recognize judicial activism for the "unfair" political results it accomplishes, but also because of the danger to Constitutional government.

Everyone needs to recognize that the the more judicial activism we have the more likely it will be that the other branches of government will seek to ignore the rulings of the Courts. This is just human nature, one that has been repeated time and time again through out history (if anyone studies history anymore).

If it gets to the point that the Courts are ignored, then it will be worse for all of us.

Too Many Jims said...

The problem with most of these folks crying "judicial activism" is that most of the time they really mean "I don't like the decision the court made." The court refuses to give the result they want in the Schiavo matter -- judicial activism. A lower court sets aside an abortion statute because the legislature either never bothered to consider supreme court decisions or considered and rejected them -- judicial activism.

M. Simon said...

I've always liked the complaint about "rights not written in the Constitution". As if the IXth Amendment didn't exist.

Such a fundamental misunderstanding of America.

I think we have Robert Bork (on the right) to blame for that one. He says the IXth is a Rorschach test.

Now there is a judicial activist. He wants to ignore a part of the Bill of Rights. Breath taking.

And he is a conservative icon.

And he rails against judicial activism.

M. Simon said...

I've always liked the complaint about "rights not written in the Constitution". As if the IXth Amendment didn't exist.

Such a fundamental misunderstanding of America.

I think we have Robert Bork (on the right) to blame for that one. He says the IXth is a Rorschach test.

Now there is a judicial activist. He wants to ignore a part of the Bill of Rights. Breath taking.

And he is a conservative icon.

And he rails against judicial activism.

M. Simon said...

Blogger gave me an error message so I hit post again.

dick said...

While I can understand your saying that the kelo decision was not a case of judicial activism, that is in the view of a lawyer. Speaking as a non-lawyer, the end result of the decision is that the court upheld the right of the city to throw people out of their homes to give or sell the land to a major corporation to build homes that in all probability the current residents could not afford and businesses that would have no use to the current residents. From my point of view that is judicial activism. The court did not uphold the rights of the citizens to keep the homes that their families had been living in for in many cases close to 100 years.

Sloanasaurus said...

"...A lower court sets aside an abortion statute because the legislature either never bothered to consider supreme court decisions or considered and rejected them -- judicial activism...."

While I agree with your original point, this quote is quite representative of the disdain some Courts have for democracy.

M. Simon said...

Sloanasaurus,

The Supremes say Congress/government does not have the power to do X.

Congress without amending the Constitution passes a law saying that the government can do X.

And that is judicial activism?

How?

We do not live in a democracy. We live in a country where the things that can be decided by majority rule are limited. This is sometimes refered to as a Republic.

It used to be the root word from which Republican is derrived. I think what you are looking for is Democrat.

Ann Althouse said...

Dick: That's simply not acceptable analysis. "Judicial activism" means that judges aggressively enforce limits on the choices of the democratic decisionmakers. The democratic process in Kelo led to the use of eminent domain. The Court did not take an expansive view of rights, but interpreted rights to defer to the legislative process. That is not judicial activism. Reread the linked article. Their arguments are incoherent if you redefine activism your way. You can't just say it's only activism when they enforce rights you don't like. It's no criticism to say I'm speaking like a lawyer! We're talking about law!

M. Simon said...

Kelo is an example of judicial activism by the slice and dice method.

The Constitution says government can't do Q.

The Court says you can't do Q but there is an X exception.

Then comes the Y exception.

Then Z.

And finally you get to the government can't do Q. Except when it wants to.

Of course the various governments pass laws acting on the you CAN do Q principle. That is democracy in action.

Ann Althouse said...

M. Simon: Using tortuous reasoning to accuse the Court of tortuous reason? Very funny. You're trying to make it come out the way you want it to come out. So how are you not the pot calling the kettle black? Let's have some straight talk here.

M. Simon said...

Ann,

I'm an engineer. Unlike lawyers engineers try to be funny.

:-)

Engineers have to stick with words have meaning or our designs (especially interfaces) don't work. Lawyers have no such restrictions.

Which probably explains why lawyers are better paid.

========================

BTW isn't my description a fairly good one of how we got Kelo?

You alter the meaning a little at a time until you get the opposite meaning. Public use. Public purpose. Government purpose.

Sloanasaurus said...

M. Simon: I read your post with more cynicism. For example:

Court - The court has decided that people have the right to do X

Legislature: We the people think that X is wrong and are trying to limit the Court's decision.

Court: We are the Court dammit!

Sloanasaurus said...

I agree with Althouse about Kelo. Kelo was not activism. Activism would have been the court condemning the houses.

Kelo wasn't activism. Kelo was just plain "un-American."

M. Simon said...

Sloanasaurus,

You forgot your prefered end point:

We are the Legislature dammit.

============================

BTW, in general, when the legislature decides what the limits of government action are, what you get are no limits.

The abortion law question you raise is an interesting point. The court says the health of the mother must be respected in the law. Since medicine is an art (based on science sometimes), health of the mother is a somewhat fuzzy concept.

So you worry that such abortions as might be allowed under the health of the mother concept might not fit your criteria of right and wrong.

And yet medicine is all about preserving health as the doctor in question understands it.

=============================

Which is why I always thought that abortion ought to be a decision between the doctor and the patient.

==============================

However, I think the conservative argument also has merit. Abortion has been with us for 2,500 years or more. Might there not be some human purpose to it which we do not fully understand? Shouldn't the conservative principle be to restrict it as little as possible because we do not fully understand human nature?

Shouldn't the conservative principle be to deal with it on an individual basis rather than with the blunt instrument of the law?

===============================

We are starting to come to an understanding of "addiction". It looks like people in chronic pain (not medically recognized) chronically take drugs.

The recognition of that pain (PTSD mostly) is beginning.

So it looks like our drug laws are thwarting human nature (which is why they do not work so good).

Might not abortion be a similar case?

Chronically taking drugs/alcohol for no apparent reason looks like evil. But if people are taking drugs chronically for chronic pain then drug taking makes sense. It may be the case that functioning on pain killers is easier than functioning in pain. Often, people in pain make poor moral choices. Perhaps that explains much of the evil caused by prohibition.

It is very important to understand the limitations of even knowledge we are sure of. Sometimes even when sure we are wrong.

==========================

Generally the things that hurt us the most are things we know that ain't so.

carla said...

The problem with most of these folks crying "judicial activism" is that most of the time they really mean "I don't like the decision the court made." The court refuses to give the result they want in the Schiavo matter -- judicial activism. A lower court sets aside an abortion statute because the legislature either never bothered to consider supreme court decisions or considered and rejected them -- judicial activism.

Ding! We have a winner.

While I realize my comment doesn't add much to this particular debate/comment thread..I think it's noteworthy how easy it is to cut to the chase here.

None of these Justice Sunday individuals are especially worked up about judicial decisions that support their cause du jour..even if those decisions apparently overstep the bounds of real judicial authority. Their rhetoric is dishonest...which in my view fits in with the general character of the group spouting it.

John A said...

Just a bit about Kelo -

The original buzz was that the land was to be given to Pfizer for offices: later, this was shown to be wrong - Pfizer had already built what they wanted, the new taking was for things like a marina (yes, public, like some downtown garages) and parks. YEs, to be built by developers (hey, would you want your city's Parks&Recreation to build a marina?) but government-owned.

Still nasty, though, if you're on the receiving end.

dick said...

Ann,

My point was that the government took the action of eminent domain to remove people from homes to give to private corporations. They then justified it by saying that it would build up the local economy. If you extend that point of view, then anything can be taken so long as you claim it is for the local economy buildup. The court said that for the democratic process to take land and homes to build up the local economy at the expense of citizens was valid. That strikes me as being totally unfair to the citizens and to the law. I thought that the courts were to protect the citizens against overreaching government. That is the lesson that is supposedly taught in civics. I do not see that the court protected the citizens at all. In fact, the court agreed that the government could take away the land and homes even though the people had paid all the taxes and owned the homes outright. The government then claimed and the court agreed that for this land to then be sold to major corporations for their own business was legitimate. How does that fit with the idea that you own your home, pay your taxes, raise your families there, build your neighborhood there, go to work from there. What this amounted to IMNSHO is that the court agreed that the government could set up any plan it wanted and then the hell with the citizens who stood in the way of it.

As I say I am not a lawyer, but the basis of private property seems to me to be fundamental to our legal system. That the court agreed that the government could take this land and not use it for the government but use it for private enterprise goes against the grain of the whole basis of private property. It seems to leave open the ability of the government to use this for punitive measures as well as just to redesign the neighborhoods for their betters. Not a good idea I would think. I am probably extending it beyond what this particular case involves but it seems to me that this case could very well lead to this a great deal of overextending by governments as a way to pay back their contributors. I would think we would be better than that in this country.

Sloanasaurus said...

Dick, again Kelo is not a good example of judicial activism. Although I agree with all your points. Kelo is a good example of Judical stupidity and it's quite un-american (and very liberal).

M Simon: I think it is necessary to keep arguing the "conservative" position on abortion. You say:

"Shouldn't the conservative principle be to deal with it on an individual basis rather than with the blunt instrument of the law?"

I totally agree with this premise as long as it is determined that the "fetus" has no rights. If it does, then the individual's rights are set aside (unless their life is threatened).

A conservative principal is one that tries to identify the truth. A conservative wants to find whether the fetus has rights in an objective sense. A conservative would question that either the fetus has rights or it does not. The right of the woman to abort comes second to this question.

Consequently, the matter becomes who decides whether or not a fetus should have rights: Should it be the woman carrying the fetus? Should the father have the say? How about a court? How about society or theology or Science?

I think a conservative would try to get this answer from society or from theology, or even Science. These are better locations to seek answers to determine the truth. Having an individual determine the rights of a possible innocent life (the fetus) would lean towards relativism and therefore would not be "conservative."

Ann Althouse said...

Dick: I think what you're seeing is that rights are important and that we need courts to enforce them to protect individuals from the tyranny of the majority. That's why the slogan "judicial activism" is inadequate. Courts are part of the tripartite system, they were put there for a reason, and they need to perform their role.
The question is what the rights are. If there are rights, court should provide remedies, and it's wrong to complain about "activism." The disputes are over the scope of rights. You think they interpreted the takings clause too narrowly in Kelo. You're intent on calling that "activism" for some reason, and it just doesn't work. Your problem is that the Court was too restrained, deferring to the legislature instead of finding a broader right. You should just critize the Court for not giving the right its full scope.

Too Many Jims said...

Sloanasaurus said . . .
"...A lower court sets aside an abortion statute because the legislature either never bothered to consider supreme court decisions or considered and rejected them -- judicial activism...."

While I agree with your original point, this quote is quite representative of the disdain some Courts have for democracy.
--------------------------

I do not doubt that you or others could point me to specific cases where courts n this country demonstrate a disdain for democracy. However, when a lower court properly applies Supreme Court precedent to a controversy before it, that perceived disdain is really a function of the constrained repect for democracy that is embodied in the Constitution.

There have been a number a times where the legislative/executive branches have disagreed with Supreme Court decisions (e.g. income tax prior to 16th amendment, flag burning). I can't see any good reason to critique a lower court judge for failing to inject herself as the arbiter of a dispute between the legislative process and Supreme court decisions. In fact, she would fundamentally miscomprehend her position in the system if she were to contradict the Supreme Court.

Finally, while I do not think a disdain for democracy is healthy, I do think that a disdain for certain democratically enacted laws may be required by the Constitution.

Glen H said...

I guess technically the Kelo decision was not an act of judicial activism.

Judicial activism is defined, by us non-lawyers, as upholding rights not previously discovered in the Constitution. The Kelo decision is the exact opposite of this; the court declined to uphold a right that is actually IN the Constitution.

Since this is the exact opposite of judicial activism, I suggest it be called judicial passivism.

It is not a contradiction to be opposed to both.