July 10, 2007

When liberals beat conservatives over the head with the word "activism"...

... they fight back.

This is a very old game, but that's a pretty good bout if you're in the mood to watch. Adam Cohen, in the NYT, did the usual thing of saying that conservatives complain about "judicial activism" but when they get to pick the judges, those judges engage in activism for conservative political causes. And then Ilya Solmin responded the way you'd expect: Conservatives are dedicated to getting the law right and doing what it requires.

But liberals also assert that the judges they like are only doing what they law requires. It's extremely uncommon for anyone to embrace the label "activism." "Activism" is a pejorative you throw at your opponents.

But here's the thing. Wielding the "activism" epithet has does not equal embracing a philosophy of "judicial restraint." Unlike "activism," "restraint" is often viewed in a positive light and some judges and legal scholars will embrace it.

Restraint has to do with deferring to the choices of democratic decisionmakers. This can favor either liberal or conservatives causes, and the price is paid by those who have preferences that lost in the political process -- often, but not always, the preferences of the majority. This is a respectable type of jurisprudence, and some judges and scholars do embrace it.

This restraint is not the same thing as avoiding activism. Judges who say they will do what the law requires and only what the law requires are not promising to use restraint.

68 comments:

Sloanasaurus said...

Trying to pin the activist label on the current court is a good effort by liberals, but it won't work.

Liberal activists make up laws from the bench. They do it because they can't win in the legislature. Liberals see the Constitution as something that must change with the times, including what is right and wrong.

Striking down an unconstitutional law is not activism unless you make up a constitutional principle to strike it down with (i.e. the right to privacy).

Doyle said...

Yeah, go conservatives! Don't let those liberals rain on your parade! It's your SCOTUS and you'll be ideological conservatives if you want to.

Simon said...

One point Ilya didn't pick up on - Cohen accuses his duly-labeled conservative activists of using the "judicial power on behalf of ... tobacco companies." One assumes he means the only non-unanimous case this term involving a tobacco company, Phillip Morris v. Williams - but that case presents a far less clear picture, given that Scalia and Thomas were in dissent in that case, with Ginsburg and Stevens, under an opinion by Breyer joined by the Chief and Alito.

I do wonder if Cohen really is stupid enough to believe his opening paragraph - that an activist is a judge who doesn't automatically defer to elected representatives on all matters - or if he's just dissembling for pure convenience.

dave™© said...

So any protestations that Blithering Misogynist Idiot is anything but a dyed-in-the-wool card-carrying moronic brownshirt fuck are pretty much over, huh?

I'm just waiting for the obligatory "I didn't leave the Democrat Party, the Democrat Party left me!" spiel.

Delete away, O Blithering One!

Simon said...

Cohen's gambit (sounds like a chess opening) isn't new - it's part of an ongoing (if incohesive) project to "neutralize the 'judicial activist' label by propounding a metric by which conservatives would seem more activist than liberals." Having failed to demonstrate that liberal judges aren't often activists, the new plan is to argue that they are, but so's everyone else, so who cares. Roosevelt and Sunstein have tried similar efforts. And there might be some merit in the argument, but it's undercut by the desperate attempts to redefine the term in order to hammer the various theses home. The scientific method does no involve changing the evidence to fit the theory.

Very simply put, the issue is this: if there's a solid case to be made that conservatives are judicial activists, why has everyone who's attempted to prove that it's so started by redefining "judicial activist" to mean something else? If you really did have a solid argument that water tastes like oranges, why would you start by defining the term "water" to mean what everyone else would consider to be orange juice?

Gahrie said...

A certain set of judges acted to change the course of Constitutional law to the left in the 60's and 70's. Another set of judges act to restore the course of Constitutional law back to the center.

Art the two actions equivilent?

Dewave said...

Judicial activism is defined as legislating from the bench: that is, creating new laws out of thin air, by passing the legislative process to advance one's social agenda through the courts.

This is not something conservatives engage in to nearly the same degree as liberals do. They are more interested in following the constitution as written than 'fixing' the constitution to eliminate social evils.

There'd be no problem with judicial activism if all judges were wise and benevolent men. But then, there wouldn't be a problem with a dictatorship in those circumstances either.

John Kindley said...

"Judges who say they will do what the law requires and only what the law requires are not promising to use restraint."

Indeed, natural law and the Ninth Amendment (and the fact that the government is not based upon the consent of the governed it pretends to be based upon and does not represent the people it pretends to represent) requires judges to strike down any law impinging on liberty that the government is not able to demonstrate is necessary to protect others' liberty.

The perjorative of "activist" applies when the judges let their arbitrary policy preferences (what they think people should do with their liberty) hang out, e.g. when they strike down laws dealing with abortion while approving the government taking of private homes to make way for a private shopping center.

David Walser said...

My understanding of the term judicial restraint goes beyond merely deferring to the legislative and executive branches; the term means having an appropriate respect for the limitations placed on the judicial branch. Sometimes, this means allowing the executive or legislative branches to make mistakes. Even if a judge knows the intent of the legislature, it's not the judges job to rewrite an otherwise unconstitutional law so that it accomplishes that intent. Nor is it the job of the courts to fix a public policy "error" made by one of the other branches -- no matter how clear that error may be.

Sometimes judicial restraint means allowing some societal problem to go unresolved. The courts don't need to fill all public policy vacuum's left by the legislative and executive branches. The recent controversy over the "terrorist surveillance program" is a good illustration of how conservatives and liberals view restraint differently in this context. It bothers some that the courts may not have jurisdiction to determine whether the government has exceeded its authority in the way the TSP is run. Others are more tolerant of limits on the reach of judicial power. (Some might argue that this is just a matter of whose ox is being gored, but I don't think so. As a general rule, liberals have a greater desire for everything to be subject to judicial review. Conservatives, in general, are more tolerant of allowing some controversies to be outside the reach of the courts.)

Simon said...

John Kindley said...
"[N]atural law and the Ninth Amendment ... requires judges to strike down any law impinging on liberty that the government is not able to demonstrate is necessary to protect others' liberty."

This is more of Barnett's thesis - although he built it on Justice Goldberg's Griswold concurrence - and it's still wrong. I haven't forgotten about your comments yesterday, I just haven't had time to get back to them yet. In any event, Federal courts have no authority to apply natural law. There is no judicial review clause in the constitution - the authority to set aside laws comes from the inherent necessity for a judge to ascertain applicable law, and the demand of the Constitution that where laws made under its authority conflicts with its provisions, the constitution prevails.

A judge who substituted (their view of) natural law for the people's law - either by striking down a statute that is not unconstitutional or by upholding one that is - would be the very definition of judicial activism.

P. Rich said...

'"Activism" is a pejorative...'

As being a pejorative does not invalidate the declaration, labeling it as such serves what purpose?

John Kindley said...

My use of the phrase "natural law" there was not as precise as it could have been. I don't mean that a judge should consult his personal understanding of what natural law says about a particular topic (e.g. marijuana OK, cocaine not-OK) and then compare it to the legislation under review to decide whether to strike it down.

I meant that certain self-evident truths, e.g. that we have the right to life, liberty, and the pursuit of happiness, are prior to and more fundamental than any human laws, and that they should inform our interpretation of human laws. This was the method of Lysander Spooner in his The Unconstitutionality of Slavery. He took it as a self-evident truth that slavery was an abomination and a clear violation of natural law. At the same time, he recognized that governments can and do enact laws that are contrary to natural law (though such laws are without moral authority). However, he took it as a rule of interpretation that any such law in violation of natural right must be clearly and unambiguously expressed. He then endeavored to examine the Constitution to see whether the provisions of the original Constitution that purportedly sanctioned slavery really did so. He concluded that they did not, and his rules of interpretation, his "presumptions," were essential to that conclusion.

The same considerations, the self-evident truth that people have a right to do whatever they want so long as they don't hurt anyone else, should guide our understanding of the Ninth Amendment, and lead us to conclude that it was meant to and does have legal effect.

In my scattershot use of the phrase "natural law" I also meant to refer to the very important and fundamental fact that the legitimacy of the whole government rests on a house of cards. "Consent of the governed" is a legal fiction foisted on the people, as Spooner so convincingly demonstrated in his No Treason: The Constitution of No Authority.

Surely that inconvenient little fact should inform a wise judge's interpretation of the Ninth Amendment and of enacted laws that infringe on individual rights.

Simon said...

John, you're simply restating the question. "Certain self-evident truths" is ineluctably an appeal to natural law. But guess what? People disagree on what constitutes "natural law." So when you declare in the abstract that "the self-evident truth that people have a right to do whatever they want so long as they don't hurt anyone else, should guide our understanding of the Ninth Amendment" (by which you assume - as Barnett argues - that the Ninth Amendment incorporates natural law into the Supreme Law of the Land, which it does not), what does that hold for, say, abortion? Is a law banning abortion violative of natural law? I'm willing to bet that if you asked Ann or Beth that question, they'd say something to the effect of "yes, it violates natural law because it restrains a woman's freedom to choose." If you ask Fen or I the same question, I suspect we'd say, "no, it doesn't, because it protects the life of the child" (indeed, I'd suspect we'd go further: natural law demands abortion be criminal, because it's murder - a proposition "self-evident" to me, but probably not to many readers here). You start to see the problem with using natural law: some truths really are self-evident, but an awful lot are merely self-evident to the speaker.

The John Stuart Mill standard that "people have a right to do whatever they want so long as they don't hurt anyone else" is also incoherent as soon as you try to apply it to concrete facts. Every action has the potential at some attenuated level of abstraction to hurt someone else. Liberals spent decades dreaming their ideals into the Constitution. That isn't free license for libertarians to do the same.

andthenblammo! said...

dave™©, you forgot the obligatory 'wine box' reference. Keep messing up like that, and you'll never make the masthead quote box like Steve Simels did!

TMink said...

I think part of the problem is with the term. Judicial "Activism" is used to refer to illegal legislation from the courts rather than elected officials. And the opposite of activism is passivism, which is just not accurate in this context.

One definition of activism is "A policy of taking direct and militant action to achieve a political or social goal." This certainly fits the context we are discussing! One definition of restraint is discipline, which also adds to the understanding of the terms when applied to legal matters.

Undisciplined judges has some merit, but would never fly. I keep looking for something that is similar to misguided or frustrated but un-elected legislator, but I cannot get anywhere with it.

Trey

Fred Soto said...

Courts were more actively liberal than not prior to Bush's appointments. During that time, conservatives fought back the only way they could: by embracing limited government and judicial restraint.

Now, conservatives have a shot at sculpting law to validate important 'values', so it is just normal that they would embrace "activism" or redefine what it means to be judicially active.

I can't help but wonder if Republicans touted limited government and "judicial restraint" because of limited power or gridlock that existed? Seems that all bets are off once the power shifts. I don't view it as a hypocrisy that exists within parties, it is one that is inherent in human nature.

The need for validation has become part of the formula for survival, which is why you see so many passionate people on both sides of the debate. It is also why we've all come to hate one another so much. We perceive policy differences as a threat to our own existence so we fight like heck to paint the enemy in a negative light.

The only certainty in the courts is that the God factor will play a major role in the years to come. Not entirely sure which way power will shift, but if the court remains in tact, the church/State distinction will 'evolve'.

John Kindley said...

No fair Simon! You raise one of the toughest of all subjects -- abortion -- to try to puncture my argument. It's telling that Barnett didn't take on this topic in his book. For the record, I'm of the party that considers abortion a violation of natural law, and have a history of advocating for a woman's right to be informed about a particular generally unknown biological consequence of this violation of natural law (see "The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk," 1998 Wis. Law. Rev. 1595, www.proinformation.net).

Barnett does put some objectivity into his conception of "natural law" and "natural rights," as well as a built-in federalist "check and balance," by generally equating the limits of the freedom to do anything you want that doesn't harm other people with the limits traditionally discerned by state courts in the common law of torts, contracts, etc. He recognizes that legislatures sometimes have a legitimate role in modifying this common law but thinks that courts should be on the look-out for legislative overreaching against individual rights when such laws are enacted.

Of course, the traditional common law of torts and contracts doesn't have much to say about abortion. It generally concerns itself with the rights of persons who are in a position to assert their rights in court, and an unborn baby is in no such position. I'm comfortable with the idea that the burden will be on the government to demonstrate that laws prohibiting abortion are necessary to protect individual rights (in this case, the right to life of the unborn child). I also believe that a wise judge or judges in such a case should consider the government's burden met, given the strength of the pro-life argument that a baby in the first trimester is as human as a newborn in the tenth trimester of its life, and the fact that the common law's failure to speak to the abortion issue doesn't really mean anything for the reason stated. This would indeed be one of those very tough cases where judicial restraint and deference to the legislature would make some sense. In any event, proceeding in the above manner, on the basis of a presumption for liberty, would seem from a pro-life perspective to be no worse than the current court's arbitrary and activist enactment of its policy preferences.

And again, I think perhaps the strongest basis for a presumption of liberty is the fact, illuminated by Spooner, that there is no "consent of the governed" that confers legitimacy on the government in the first place.

I'm no big fan of the "unelected political appointees" who comprise the federal judiciary. But I might be even less a fan of the bought-and-paid-for elected politicians who purport to represent me. They don't.

Luckyoldson said...

Sloanasaurus said..."Trying to pin the activist label on the current court is a good effort by liberals, but it won't work."

during this past term of the supreme court, there were 24 cases decided by a 5-4 vote, the conservatives being the majority. in the last term there were 11 such cases in both directions combined.

if this isn't a form of "activism" i don't know what is.

Luckyoldson said...

gahrie said: "Another set of judges act to restore the course of Constitutional law back to the center."

you think this court is moving things back to the "center??"

you might want to think about reading the opinions.

Simon said...

Luckyoldson said...
"during this past term of the supreme court, there were 24 cases decided by a 5-4 vote... if this isn't a form of 'activism' i don't know what is."

If you think that the vote division is a yardstick for whether they're being "activist" or not, you're a bigger idiot than anyone here suspected. I'm going to give you the benefit of the doubt and assume that was intended to be sarcasm.

You can't measure "activism" by the vote tally any more than you can measure it by willingness to strike down a statute. Empirical studies of activism are very hard to design, because you have to make a case-by-case assessment of what the permissible range of outcomes dictated by the text are, and whether a given justice came to a contrary conclusion.

Dewave said...

if this isn't a form of "activism" i don't know what is.

You quite clearly have no idea what activism even means. I'll give you a hint: it's not related to vote totals at all.

Your ignorance is made all the more painful by the fact it's sandwhiched in between much more thoughtful, insightful, and cogent arguments between John, Simon, and Fred.

They're deep in earnest debate about some morally thorny issues, and you come along revealing you don't even know the meaning of the term under discussion.

Richard said...

"...if this isn't a form of "activism" i don't know what is."


I take this as a simple statement of fact.

Ignorance is Bliss said...

Dewave said...

There'd be no problem with judicial activism if all judges were wise and benevolent men.

Or women.

Wade Garrett said...

I have a new term for people who use the phrase "judicial activism."

That term is "people who have not read the Ninth Amendment."

Paul Zrimsek said...

If you think that the vote division is a yardstick for whether they're being "activist" or not, you're a bigger idiot than anyone here suspected.

Anyone but me, you should say; I never dared even guess at a limit.

Mortimer Brezny said...

If you think that the vote division is a yardstick for whether they're being "activist" or not, you're a bigger idiot than anyone here suspected.

That isn't true. His point is that you have two voting blocs that are just voting ideology. Because at any time one of the 5 could die and the ideological composition could shift, you have instability in the legal regime and a court that is politicized. Whereas if 9 Justices agree, even if it is on a narrow basis that avoids deeper divisions, what was agreed to is stable and is likely viewed as legitimate. You certainly can call the 5 in control "activist" if you like, because they're just voting their voting preferences. You could equally say that of the other 5 once there is a shift. Maybe that means the term is meaningless, or perhaps it applies properly in both cases. But it isn't an idiotic measure.

You're just mean.

Mortimer Brezny said...

Judges who say they will do what the law requires and only what the law requires are not promising to use restraint.

Except in his Senate confirmation testimony, Roberts repeatedly invoked Felix Frankfurter, who was a model of judicial restraint as you define it.

AJ Lynch said...

Libs try to take ownership of certain types of words. Activism is one of course.

Others I can think of include compassion, diversity, nuance. The newest word libs are using is "investments". It is the lingo of Dem pols who want to raise taxes and make "investments".

It's what someone does when they don't have the balls to use the accepted and traditional lingo.

hdhouse said...

Sloanasaurus said...
"Liberal activists make up laws from the bench. They do it because they can't win in the legislature."

You are just plain insane.

Simon said...

Mortimer Brezny said...
"His point is that you have two voting blocs that are just voting ideology. Because at any time one of the 5 could die and the ideological composition could shift, you have instability in the legal regime and a court that is politicized. Whereas if 9 Justices agree, even if it is on a narrow basis that avoids deeper divisions, what was agreed to is stable and is likely viewed as legitimate."

That's a very creative attempt to salvage LOS's point, Mort, but it fails because it suffers from the same flaw: it doesn't connect to the meaning of judicial activism. If Roper was judicial activism, it would have been no less so by virtue of four more votes; if Cuno wasn't judicial activism, it wouldn't have become more so by losing four votes. Judicial activism is tied to going beyond the permissable range of interpretations of the text. Two judges can disagree on what the best reading of the text without either reading necessarily being activist, and a judge can at least attempt judicial activism even when writing alone (as some would perhaps argue Thomas' Cutter concurrence was).


"You certainly can call the 5 in control 'activist' if you like, because they're just voting their voting preferences."

That isn't "activist" unless you redefine the term "judicial activism," which comes back to my point about orange juice earlier: you certainly can say a car runs on 'water' if you like, as long as you define 'water' as a refined byproduct of crude oil commonly sold under the trade name "gasoline."


"You're just mean."

Well, that's true. Mean, evil conservative, yadda yadda yadda. But his position's still absurd, and judicial activism still doesn't mean "any case decided 5-4" any more than it means "any case you think was wrongly-decided."

Mortimer Brezny said...

Well, that's true. Mean, evil conservative, yadda yadda yadda.

1. I am a conservative.
2. You're not mean because you're a conservative.
3. You're mean because you called someone an idiot for no reason.
4. Your failure to understand points 1-3 is idiotic.

That isn't "activist" unless you redefine the term "judicial activism"

Your definition of activism is malnourished. A court that went out of its way to issue advisory opinions would be an activist court. Likewise, a court that took up cases, knowing the legal issues at hand were frivolous, just to make law they preferred on the basis of ideology, would be activist. You can try to infer that from voting behavior, e.g., if there are consistent blocs. It does not require a redefinition of activism; whether it si sufficient proof of it is another matter. But it is an empirical, not a rhetorical one.


Judicial activism is tied to going beyond the permissable range of interpretations of the text.

No, that isn't necessarily true at all. The noun phrase "advisory opinion" isn't in the text of Article III, but a Supreme Court that continually issued advisory opinions and then treated them as law would be activist. You want to wed activism to textualism because that's your ideological preference, but our constitutional history has more interpretive traditions and canons than textualism, and you can be a robust conservative without having such a narrow understanding of what activism is. Indeed, not even Scalia is that narrow, which is why he resorts to history and other modes when the text is ambiguous or unhelpful. I think you had better take a look at the text of the Eleventh Amendment, because your definition necessarily means Justice Scalia is a judicial activist.

downtownlad said...

Oh Right - So how is it "restraint" to overturn local laws that regulate the purchasing of internet wine???

And there's a pretty clear amendment in the Constitution where the plain text explicity GRANTS states the right to regulate alcohol.

Mortimer Brezny said...

If Roper was judicial activism, it would have been no less so by virtue of four more votes

Roper was judicial activism for plausibly two reasons:

1. It didn't defer to state legislatures, or was otherwise anti-democratic. If you concur with Ann's split between restraint and fidelity, this should not mean activism to you.

2. It took Congressional silence as proof of acquiescence and relied on a treaty that the political branches refused to ratify. This, of course, does not rely on an implausible reading of the text of the Eighth Amendment. The argument is that the Court exceeded its power through dishonest manipulation of irrelevant legal materials and rendered what amounts to an advisory opinion. As a matter of the text of the Eighth Amendment, it is obvious that executing a juvenile could be considered within the plain meaning of cruel and unusual.

So either your definition of activism isincoherent or you disagree with Ann's split between restraint and fidelity. Which is it?

Now, one could note that Roper was one activist case amongst many in the Term by pointing out that the dishonest manipulation of legal materials was done by the same voting bloc as all the other cases featuring such dishonesty. But that is not the strawman you try to huff, and puff, and blow.

Simon said...

Mortimer Brezny said...
"...You can try to infer that from voting behavior, e.g., if there are consistent blocs. It does not require a redefinition of activism..."

Yes, it does, because there is nothing you can prove from pure voting alignments. Now, if you assume it is always the same five and the same four, then that is the beginnings of a relevant point, but even so, it is so lame that if it were a dog you'd shoot it out of sympathy. If you have four activists on the court and they lose every time, the result will always be 5-4, but the court will not ipso facto have been activist. Voting tallies are irrelevant to the question of whether the case is correctly decided (or at least a reasonable result within the limits of the text being construed), the determination of which is prerequisite to a determination of judicial activism. Roe is the poster-child for judicial activism. It was decided 7-2. Apprendi, practically a model of a court that is active without being activist? 5-4. Brown, also active without being activist? Nine to nothing. Voting tallies buy you nothing. They're irrelevant. That's why I called LOS an idiot, and he is an idiot. (BTW, just because you don't agree with the reason doens't mean that there's no reason. Just a hint.)

"The noun phrase "advisory opinion" isn't in the text of Article III, but a Supreme Court that continually issued advisory opinions and then treated them as law would be activist."


The words "adversary system" and "standing" aren't mentioned in the text either, and federal courts are nowhere in the text granted the power to strike down acts of Congress. They inhere in the nature of the judicial power and the judicial task. An advisory opinion is anathema because it is not a "case or controversy." It doesn't need to say "advisory opinion" or "standing" for painfully obvious reasons that have been repeatedly observed by everyone from Marshall to Frankfurter to Roberts. So yes, Mort, a court that issued an advisory opinion would be activist, for precisely the reason I said: because issuing advisory opinions is not within the permissable range of interpretations of the text of Article III.


"I think you had better take a look at the text of the Eleventh Amendment, because your definition necessarily means Justice Scalia is a judicial activist."

That presupposes -falsely - that Hans is not within the permissable range of interpretations of the 11th Amendment and that stare decisis has absolutely no force whatsoever. When I say "the permissable range of interpretations of the text" - which is more or less a verbatim quote from Scalia - I no mnore than he means that you cannot look beyond the text to understand what those words mean. "The judicial power" is not, in itself, self-explanatory, and even a textualist can and must look to extratextual sources to evaluate what that phrase meant at the time the text was adopted. Textualism doesn't mean you have to flat-out make it up - just because the word "tax" isn't defined doesn't mean that a textualist has to say "well, it says 'tax' and I don't know what that means, so it must be a Borkian inkblot." That would be an absurd position, and I don't think anyone takes it. Certainly not me.

Simon said...

downtownlad said...
"[H]ow is it 'restraint' to overturn local laws that regulate the purchasing of internet wine???"

Note that Scalia and Thomas were on oppisite sides of Granholm. So whatever you can say about that case, or infer from it about Scalia and Thomas, you can't say much about judicial conservatives without identifying which position was the conservative side!


Mort:
"either your definition of activism isincoherent or you disagree with Ann's split between restraint and fidelity. Which is it?"

I have no idea where you get the idea that I agree with Ann on everything. In any event, Roper was an activist decision for any number of reasons, none of which have to do with "defer[ence] to state legislatures." It was an activist decision because it went beyond not only the text of the Eighth Amendment, but also the subsequent jurisprudence of the Eighth Amendment and the generally-accepted (if flawed) standard for determining Eighth Amendment violations. And of course, don't even get me started on foreign law. However, that doesn't mean I completely agree with you - there's no serious argument that Roper failed to present a genuine case or controversy, rendering the decision an advisory opinion, and it's beyond silly to say it was activist because it was decided 5-4.

Mortimer Brezny said...

Yes, it does, because there is nothing you can prove from pure voting alignments.

Who said that voting alignments are the definition of judicial activism? Not me. That's the strawman you keep attacking, for no reason. No statistics "prove" anything. You can't "prove" smoking causes cancer.

even a textualist can and must look to extratextual sources to evaluate what that phrase meant at the time the text was adopted.

Then your point about not looking to voting alignments (which Cohen does) or whether an opinion is dishonest (which Cohen does), to evaluate whether there is activism, makes no sense.

It doesn't need to say "advisory opinion" or "standing" for painfully obvious reasons that have been repeatedly observed by everyone from Marshall to Frankfurter to Roberts. So yes, Mort, a court that issued an advisory opinion would be activist

Given your expansive and multimodal method of how to interpret what is activist and what is not, it seems your attack on Cohen is the pot calling the kettle black.

B said...

AJ, you said:

The newest word libs are using is "investments". It is the lingo of Dem pols who want to raise taxes and make "investments".

I'm afraid you're little late to the party on that one, my friend - Bill Clinton, while far from being the first lib to use it, made it his own catch phrase:

(we must)"invest in education, technology, healthcare and the environment" - you can change the order - was his pet phrase during the 1996 election.

My personal favorite: in watching one of the Clinton-Dole debates, Bill used the phrase "if we're not afraid to invest in education, yada, yada, yada . . . ad nauseum"

I remember my (then) 11 year old daughter asking me, "Dad, are we afraid of investing in education and stuff"?

Good liberal spin.

Mortimer Brezny said...

and it's beyond silly to say it was activist because it was decided 5-4.

No one made this argument. Not even Cohen.

It was an activist decision because it went beyond not only the text of the Eighth Amendment, but also the subsequent jurisprudence of the Eighth Amendment and the generally-accepted (if flawed) standard for determining Eighth Amendment violations.

That's not really true. Kennedy's parsing of evolving consensus is justifiable in the wake of Atkins and so forth. And "cruel" and "unusual" are normative terms.

As for your dismissal of the state legislatures concern, it would make sense that in the absence of the President and the Senate joining the relevant treaty, the power to define state criminal law would rest with state legislatures, not with the Supreme Court. It appears your definition of judicial activism ignores the Tenth Amendment. Some conservative you are.

Mortimer Brezny said...

I have no idea where you get the idea that I agree with Ann on everything.

The point is her split between restraint and fidelity preserves a coherent definition of activism with which to attack Cohen. If you reject her split, I don't see, given your arguments, how you have any safe harbor from which to strike at Cohen. My point is not that you agree with her; it's that her argument is better than yours.

Mortimer Brezny said...

Voting tallies are irrelevant to the question of whether the case is correctly decided (or at least a reasonable result within the limits of the text being construed), the determination of which is prerequisite to a determination of judicial activism.

No one is talking about the voting tally in one case. Cohen is talking about a coherent voting bloc in a run of cases over a term. Your point is obtuse and fallacious.

downtownlad said...

It is not "activist" to believe the Constitution protects liberty.

Because it does.

Unless you're a Republican - who thinks liberty is evil.

downtownlad said...

Republicans don't even believe in economic liberty.

If I buy an iphone from Apple and want to resell it for $50, the Stalinist Republicans on the Court have now said that Apple can dictate what price I sell MY iphone for, the iphone that I own.

Mortimer Brezny said...

If I buy an iphone from Apple and want to resell it for $50, the Stalinist Republicans on the Court have now said that Apple can dictate what price I sell MY iphone for, the iphone that I own.

Thank you. Totally obliterating individual property rights in favor of...manufacturer's rights against downstream competition? Huh?

Simon said...

Mortimer Brezny said...
"If you reject her split, I don't see, given your arguments, how you have any safe harbor from which to strike at Cohen."

And I don't see how that's even a coherent argument. I can strike at Cohen because he is thrusting at a made-up strawman; like Lori Ringhand and Paul Gewirtz before him (and many more), he is redefining "judicial activism" in order to make it more amenable to the criticism he wants to level at it. Gewirtz's syllogism, for example, was this: judicial activism was a willingness to strike down statutes, conservatives are more willing to strike down statutes, ergo conservatives are judicial activists. Cohen's is this: judicial activism is "tell[ing] democratically elected officials how to do their jobs," conservatives are more willing to tell democratically elected officials how to do their jobs, ergo conservatives are judicial activists. While it may also be true that in both cases the minor premise is flawed, the bigger problem is that the major premise is flawed: in both cases, the major premise begins by redefining "judicial activism." That term already has a meaning, it has pejorative connotations that the authors obviously mean to invoke, and so any piece that attempts to prove that conservatives are judicial activists that begins by redefining the term is flawed.

Words have meanings. You don't get to unilaterally redefine them just because an alternative definition would suit your purpose. Liberals don't get to redefine "segregation" as an antonym of diversity in the School Cases just because it suits their agenda, and Cohen doesn't get to redefine judicial activism as something other than it is just because he's dreamed up some other definition that conservatives would meet. If Cohen's syllogism was "flibblewibbleism is "tell[ing] democratically elected officials how to do their jobs," conservatives are more willing to tell democratically elected officials how to do their jobs, ergo conservatives are flibblewibblists" (and if the minor premise weren't obviously flawed) then that'd be fine. Of course, he wouldn't then write the article, because it wouldn't serve his agenda: no one cares what a flibblewibblist is, no one has accused liberal judges of being flibblewibblists, and so it's totally useless to argue over whether conservatives are flibblewibblists.

And that's my safe harbor.


"[H]er argument is better than yours."

It usually is.

Mort, this is getting unproductive. We're arguing past one another. People can evaluate what I've written above, and I'm confident enough that it speaks for itself that it doesn't require another round of rebutting your arguments to the contrary.

Simon said...

downtownlad said...
"Unless you're a Republican - who thinks liberty is evil."

Is anyone else increasingly persuaded that DTL's a satirist at this point? Yeesh. Knock it off, DTL. Your problem with (most) Republicans has nothing to do with liberty generally or most liberties specifically - it has to do with a very narrow subset of "liberties" that go under the header of gay rights. And your views on that subject may be meritorious, you may even have the better argument, but it doesn't mean that the people who disagree with you don't believe in liberty.

downtownlad said...

Oh, yes, of course you're right Simon.

Surely people like Robert Bork were PRAISING liberty when they called than 9th amendment ....

AN INKBLOT.

And no Simon - I don't just care about gay rights. I care about privacy, which is an extremely important aspect of Liberty.

Pricacy - something you despise. You think that you have the right to monitor my bedroom.

I don't.

You think you have the right to determine what I do to MY body, including which medicine I can take if I am sick or dying.

I don't.

You think you have the right to determine the manner in which I die.

I don't.

You think you have the right to determine whether I want to rent a porno film.

I don't.

And so on and so on and so on.

Mortimer Brezny said...

Cohen's is this: judicial activism is "tell[ing] democratically elected officials how to do their jobs," conservatives are more willing to tell democratically elected officials how to do their jobs, ergo conservatives are judicial activists.

Except if you carefully read each topic sentence of Cohen's piece, he uses a number of empirical measures that implicitly expand his "definition," which seems to suggest it was a factual starting point rather than a normative ending point.

Repeating your rhetorical broadside on Cohen's liberally-biased "definition" without engaging with the empirical measures he uses to support his hypothesis means you never deal with the substance of Cohen's article. Rather than propounding a values-infected ideal category, Cohen seems to be saying "As a matter of fact, activism would look like X, more or less, let's look and see what we find, shall we?"

Which is why Ann's split makes sense: it tracks what judges actually do and distinguishes different species of judicial behavior that Cohen fails to distinguish as a matter of description.

downtownlad said...

And of course - not to mention the Freedom to marry the partner of my choice.

Not to mention the right of an 18 year-old to bring a "Bong Hits 4 Jesus" banner to a public event that is taking place OUTSIDE of school.

Not to mention the right to sell a product I own for whatever the hell price I choose to sell it for.

Not to mention the right to use medical marijuana in a state where it is LEGAL.

Not to mention the right to burn the American Flag if I so choose.

And so on and so on and so on.

downtownlad said...
This comment has been removed by the author.
downtownlad said...

In fact, the only liberties I can actually recall conservatives supporting are pretty dumb ones.

1) The right to have your property exempt from eminant domain - despite the fact that the Constitution explicity allows for eminant domain as long as there is "just compensation".

2) The right to be free of integration

3) The right to mandate that other taxpayers subsidize your religion.

Mortimer Brezny said...

While it may also be true that in both cases the minor premise is flawed, the bigger problem is that the major premise is flawed

Except induction is not syllogistic logic.

Simon said...

downtownlad said...
"Oh, yes, of course you're right Simon. Surely people like Robert Bork were PRAISING liberty when they called than 9th amendment."

Even setting aside the obvious -- "since when did Robert Bork speak ex cathedra for all Republicans" -- as has been recounted a million times (indeed, most recently by me, today) Bork did not call the Ninth Amendment an inkblot. What he said at his confirmation hearings was that if a clause reads "Congress shall make no law ___" and the gap is covered by an ink blot, a court cannot simply declare what it would like to be under the ink blot and enforce that; it must conclude that the provision is inoperative. And likewise, Bork argued, if a provision of the Constitution has no discernable meaning - i.e. because the original meaning cannot be established - that is a similar situation: courts cannot simply make up what they'd like the text to mean.

Now, I actually disagree with him on this point, for reasons that need not detain us, but the point he was driving at - and this much I do agree with, for the greater part - is that the only law the Federal courts are empowered to apply to cases before them are the laws adopted by the American people: the Constitution of the United States, and the laws and treaties made pursuant to it. That was what Bork was driving at. He makes perfectly clear in The Temping of America that he doesn't believe that this assesment applies to the Ninth Amendment

The balance of your post doesn't really warrant response. You're talking about natural law, and I have no interest in discussing that. What is relevant here is what a court can do - does the Constitution of the United States forbid a state from banning suicide? Of course not. Does it forbid a state from banning pornogaphy? Maybe; here's another example of something I don't necessarily agree with Bork about: while I haven't formed an opinion about the relationship of the First Amendment to obscenity laws, I certainly don't go so far as Bork, who declared that "Constitutional protection should be accorded only to speech that is explicitly political," R.H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 20 (1971). I don't agree with that.

Mortimer Brezny said...

You're talking about natural law, and I have no interest in discussing that. What is relevant here is what a court can do - does the Constitution of the United States forbid a state from banning suicide?

And isn't interesting that you think a discussion of natural law is irrelevant to deciding whether suicide may be banned? Perhaps it isn't dispositive or persuasive...but irrelevant?

Simon said...

Mortimer Brezny said...
"Repeating your rhetorical broadside on Cohen's liberally-biased 'definition' ..."

I didn't attack him for redefining the term to mean something "liberally-biased." It would be no more valid for a piece in the Washington Times to respond to Cohen's piece by saying that he's obviously wrong because judicial activism means judges reaching liberal results, and since Alito et al aren't reaching liberal results, they can't be judicial activists. Once you start from a flawed hypothesis, it doesn't matter what data you produce to support it.


downtownlad said...
"Not to mention the right to sell a product I own for whatever the hell price I choose to sell it for."

What conservative said you couldn't?

"Not to mention the right to burn the American Flag if I so choose."

You have that right, and Justice Scalia and I have both said so.


"[T]he Constitution explicity allows for eminant domain as long as there is 'just compensation.'"

It also requires that the taking is for "public use."

Mortimer Brezny said...

Once you start from a flawed hypothesis, it doesn't matter what data you produce to support it.

A hypothesis need not be "right" for it to produce valuable data or scientific generalizations; induction does not work like deduction.

Simon said...

Mortimer Brezny said...
"[I]sn't interesting that you think a discussion of natural law is irrelevant to deciding whether suicide may be banned? Perhaps it isn't dispositive or persuasive...but irrelevant?"

It isn't irrelevant to deciding whether suicide (assisted or otherwise) should be banned, Mort - it's perfectly relevant if you're a state legislator and you're trying to figure out whether to enact or repeal a law barring assisted suicide. But it is of no relevance in determining what the Constitution of the United States says about the matter, one way or another. It is perfectly clear that there is nothing in the constitution that forbids the states for criminalizing assisted suicide, whatever natural law might have to say on the subject (and I have no idea - I have no position one way or another). The only way it might be relevant is if you believe that one or more clauses of the Constitution incorporate a judge's opinion about natural law into the Supreme Law of the Land - either via the Ninth Amendment, the Fourteenth Amendment, you know, whatever. But I don't believe that to be so.

I have no idea why I keep having to quote Bork today, but I will quote myself quoting him: "'I am far from denying that there is a natural law, but I do deny both that [Article III] ha[s] given judges the authority to enforce it....' The question is not whether or not American law should resemble natural law, foreign law, or even the laws of the planet Krypton; the question is who gets to decide." Dodd, The stealthy emasculation of the royal prerogative and the expansion of executive power in Britain at 4 n.11 (quoting Bork, THE TEMPTING OF AMERICA 66 (1990)).

Mortimer Brezny said...

It isn't irrelevant to deciding whether suicide (assisted or otherwise) should be banned, Mort - it's perfectly relevant if you're a state legislator and you're trying to figure out whether to enact or repeal a law barring assisted suicide. But it is of no relevance in determining what the Constitution of the United States says about the matter, one way or another.


But that's bunk. If it's perfectly relevant if you're a state legislator and you're trying to figure out whether to enact or repeal a law barring assisted suicide, then it must be of some relevance in determining what the Constitution of the United States says about the matter, one way or another, because state legislators have an obligation to uphold the federal Constitution.

Furthermore, your argument works only in the bizarro world where every Justice of the Court, throughout its history, has been Robert Bork. Robert Bork is not on the Supreme Court. By contrast, our nation has a longstanding tradition of natural law jurists and natural law jurisprudence that has informed our interpretation of the Constitution. Not to mention state judges interpret and have an obligation to the federal Constitution as well, even when deciding questions of state law.

So natural law certainly is relevant to determining whether a constitution that bars the government from alienating our natural rights permits the government to ban suicide. Natural law is suffused throughout the Declaration of Independence, which may or may not have legal value greater than or less than the Federalist papers. Whether natural law controls is another matter, but it depends on the personnel of the Court.

It is not irrelevant as a matter of logical necessity.

Simon said...

Mortimer Brezny said...
" If it's perfectly relevant if you're a state legislator and you're trying to figure out whether to enact or repeal a law barring assisted suicide, then it must be of some relevance in determining what the Constitution of the United States says about the matter, one way or another, because state legislators have an obligation to uphold the federal Constitution."

Non sequitur. Of course, you're absoltely correct that state legislators have an obligation to uphold the federal constitution,and frankly, I suspect most state legislators take that a lot more seriously than members of Congress do. Still, It's irrelevant as a matter of interpreting the constitution. The constitution doesn't say anything about the states' policy on assisted suicide. Therefore state legislators can follow their own conscience,and their consciences ought to be informed by natural law.

"Robert Bork is not on the Supreme Court."

There's a pity.

"Not to mention state judges interpret and have an obligation to the federal Constitution...."

You don't have to tell me that. I've read our Hostess' scholarship.

AlphaLiberal said...

What? Hello?

You think it's liberals beating conservatives over the head with "activism?"

Have you been paying attention?

And that post you link to is actually funny. It's a long-winded way of saying "activism is what we say it is" and "'activism only applies to people who don't believe like us."

Really that was a pretty incoherent definition. Poorly reasoned and written.

Dewave said...

That isn't true. His point is that you have two voting blocs that are just voting ideology. Because at any time one of the 5 could die and the ideological composition could shift, you have instability in the legal regime and a court that is politicized. Whereas if 9 Justices agree, even if it is on a narrow basis that avoids deeper divisions, what was agreed to is stable and is likely viewed as legitimate. You certainly can call the 5 in control "activist" if you like, because they're just voting their voting preferences. You could equally say that of the other 5 once there is a shift. Maybe that means the term is meaningless, or perhaps it applies properly in both cases. But it isn't an idiotic measure.

You don't really understand what 'activist' means either.

It is completely and totally unrelated to the vote tally. A 9-0 court stuffed full of ideologues who all agreed would be more activist than a court of 4 activists who always got voted down by 5 people exercising judicial restraint.

Even *if* we assumed that the number of 5-4 cases indicated that we had two concrete immovable blocks that always voted together, we still wouldn't have established that they did so out of shared ideology, and after that we still have the additional step of showing that their ideology is one of activism.

It's not how close the votes are, or how frequently judges rule together, it's the outcome that determines whether something is judicial activism.

I mean really, the whole thesis is absurd beyond belief. Let's say all 4 judges in the minority died, and were replaced by 4 more judges in the same ideological mold as the other 5. They all proceed to vote together, 9-0. The ideological bent of the court has not changed, but by both your standards and luckys, it's now "less activist".

Mortimer Brezny said...

Even *if* we assumed that the number of 5-4 cases indicated that we had two concrete immovable blocks that always voted together, we still wouldn't have established that they did so out of shared ideology, and after that we still have the additional step of showing that their ideology is one of activism.

Yes, which I already noted. Scroll up. Cohen attempts to do that by pointing out how dishonest the Roberts Court is in comparison to previous compositions of the court.

Mortimer Brezny said...

"Not to mention state judges interpret and have an obligation to the federal Constitution...."

You don't have to tell me that. I've read our Hostess' scholarship.


You may be able to read but consistency and coherence are other matters. To determine whether the state legislation is valid, the state legislator has to consider what the Constitution means -- if the state legislator, in fidelity to the Constitution, finds that the legislation is barred, he won't vote for it. If he finds it isn't, he'll vote for it. There's your relevance threshold right there -- the constitutionality of the state legislation is determined in reference to the Constitution; the resulting law won't say "Everyone who voted for this law believes it is constitutional". The separation you claim is there cannot be found in positive law.

The point of the oath of state judges is that they might disagree with the state legislators. They have to consider the state legislators' arguments, too. There's another relevance threshold.

If the case is in the right posture, assume away AISG, the Supreme Court might hear the case, which means the Supreme Court has to consider the legislators' arguments as well. That's relevance.

Not to mention the people elect legislators and state judges and politicians who appoint Supreme Court nominees to make these kinds of judgments. And many of those think natural law interpretation of the Constitution is correct. That's relevance.

The people always have the power to amend the Constitution if they disagree with its current interpretation; so the natural law jurisprudence in the nation is never irrelevant so long as it is a part of the discourse in our deliberative democracy. You might imagine there wouldn't be any outcry that our natural law traditions were being vititated if no one even close to Bork were on the court.

Still, It's irrelevant as a matter of interpreting the constitution. The constitution doesn't say anything about the states' policy on assisted suicide.

This is the fallacy that I pointed out in your earlier argument. That the text of the Constitution doesn't say XYZ does not make it improper to interpret the Constitution to permit or to bar XYZ. You yourself agreed that Article III need not include the words "standing" or "advisory opinion". So, no, the constitutional tradition of natural law juridprudence is not irrelevant because natural law is not in the structural Constitution (though it is in the Federalist papers and Declaration of Independence and lots of commonlaw). It is a part of the consideration; that's what interpretation is. Whether it controls the outcome is another matter. But that isn't an argument as to relevance; it's an argument as to dispositivity.

It appears you are the rare textualist who does not know what the plain meaning of "relevant" is.

dick said...

Interesting. Now if he could just show us where the Roberts Court is being dishonest, he might have a valid point. Since he cannot do that he is just flapping him gums because they don't agree with his POV.

Mortimer Brezny said...

Interesting. Now if he could just show us where the Roberts Court is being dishonest, he might have a valid point. Since he cannot do that he is just flapping him gums because they don't agree with his POV.

Cohen uses the same attack on Roberts' dishonesty that Scalia does in Hein. He notes that the judicial modoesty that Roberts claims is faux judicial modesty, i.e., it is dishonest. His point is valid. Whether it is sound is another matter.

Simon said...

Mortimer Brezny said...
"To determine whether the state legislation is valid, the state legislator has to consider what the Constitution means -- if the state legislator, in fidelity to the Constitution, finds that the legislation is barred, he won't vote for it. If he finds it isn't, he'll vote for it."

Well, let's start by stipulating your rather romanticized view of state legislators carefully and diligently comparing the proposed legislation to the federal constitution, since I concede that ironically enough it's more likely that state legislatures do so than that Congress does. And let's also stipulate that the statute is compact, and deals with a single issue, presenting no potentially close constitutional questions and having no vital purpose that might justify enacting the statute notwithstanding dounts about one portion of it (cf. Amar, AMERICA'S CONSTITUTION: A BIOGRAPHY 183-4 (2005) (discussing early use of Presidential veto vis-a-vis constitutionality of legislation)). Even with that in mind, I think the bald assertion that if a legislator "finds it isn't [unconstitutional], he'll vote for it" overreaches. I presume what you mean is that a finding of constitutionality is implicit in any vote to enact a given piece of legislation, but it obviously overreaches to suggest (as I think you do) symmetricality - a vote against a piece of legislation can be on anygrounds.

As to the suggestions that the courts have to consider the legislators arguments, unless you're implying specific findings included in the text, you're suggesting that courts look into legislative history, which I categorically reject. Easterbrook, Text, History & Structure in Statutory Interpretation, 17 Harv. J. of L. & P.P. 61 (1994); Scalia, A MATTER OF INTERPRETATION 29-37 (1997). So the answer is still no - if the court is doing its job right, natural law is of no relevance. At most, the could accord a presumption of constitutionality to the legislation, but the problem with courts adopting a presumption of constitutionality is that legislatures tend to have one too.


"And many of those [Judges] think natural law interpretation of the Constitution is correct."

Although I'm sure it won't convince you, those judges are wrong.

Simon said...

Sorry, the penultimate statement in my previous comment ("the problem with courts adopting a presumption of constitutionality is that legislatures tend to have one too") ought to have linked to this post.

horrace said...

If you want judicial activism, then I give you U.S. District Judge Donald L. Graham, a 1992 BushI "HW" appointee, and supposed conservatitve and strict constructionist. Judge Graham issued the very prior restraint on pure speech that has withheld appellant scrutiny. Judge Graham prohibited a pro se plaintiff from communicating with the government. See http://donaldlgraham.blogspot.com.




A tale of two Appeals: Two S.D. Fla. Judges, Precisely the Same Facts, Different Result on Appeal

It appears that the "favored" judges in the Eleventh Circuit do not have to worry about being reversed on appeal, as matter of fact, it appears that the Eleventh Circuit will take extreme measures to affirm a favored judge. It is not fair to other judges or litigants to have such a two-tiered system.

Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004) and the Eleventh Circuit vacated and remanded Judge Hurley's denial of an IFP application. You might be curious to know that Judge Donald L. Graham in the same Court, Southern District of Florida did the exact thing as Judge Hurley, but Judge Graham was affirmed. Take five minutes and read mmason.freeshell.org/martinez.htm .


Similarly in World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995), U.S. District Judge Ursula Ungaro-Benages, United States District Court for the Southern District of Florida, was reversed on appeal for failing to make an explicit finding under Fed.R.Civ.P. 41(b), while U.S. District Judge Donald L. Graham, S.D. Fla., failed to make the same explicit finding, but was affirmed on appeal. See mmason.freeshell.org/WorldThrust.htm .


Additionally, the Eleventh Circuit has made a mockery of the "rule of law" by asserting all manner reasons for refusing to review a "sua sponte" issued pre-filing injunction. See mmason.freeshell.org/SuaSponte.htm This same "sua sponte" issued pre-filing injunction which is clearly illegal and invalid, mmason.freeshell.org/RejectSuaSponte.htm formed the basis of criminal contempt complaint. See mmason.freeshell.org/contempt.html


It appears that the Eleventh Circuit will take extreme measures, including unlawful and unsustainable and contradictory reasons, to affirm a favored Judge like Donald L. Graham, read the following unpublished opinion and link:

* mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm
*

This opinions do not need commentary as they are outrageous

Mortimer Brezny said...

Simon,

As for you taking my "bald assertion" out of context, that you had to take it out of context only proves it wasn't a bald assertion. The question concerned only constitutionality as a variable and the analysis presumes that is understood. Your incapacity to understand is not my problem. You may be able to deconstruct a sentence, but that has nothing to do with my analysis.

As for the consideration of legislator's arguments by state judges, that does not require courts citing to legislative history as precedent. It simply requires a state attorney general who submits to the court a brief and oral presentation that fits what was actually debated and considered on the floor of the legislature. You can find countless examples of state attorneys general using the actual intent of a law rather than post-hoc defenses in court. Again, you may have read Scalia's book, but you have no idea how the law works.

As for inserting "[judges]" into your quote of one of my sentences, you are in fact the one who is wrong. "Those" refers to a large group, including politicians, voters considering amending the Constitution, Supreme Court Justices, and state judges who sit for election. While you may disagree with a judge's interpretation of the law, you don't get to say that an amendment to the Constitution is "wrong" as a matter of law. That's simply incoherent. While an unfair person would say it shows your literacy has been called into question, a fairer man would infer that you have no idea what you are talking about when it comes to constitutional theory.