Althouse: "Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down."

April 9, 2012

"Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down."

"It’s really vacuous. It’s a cheap shot that all politicians love to take because it’s easy to level."

29 comments:

Dan in Philly said...: I'm no lawyer, but I always understood judicial activism as a term for writing legislation from the judge's chair, which isn't their place to do. If the executive writes laws (which it sometimes effectively does) it can be accused of executive activism.

Of course all this is just a way for the left to try to hide the acute embarrassment they are feeling for the words of their super-intelligent-Harvard-review-president-dolt-in-chief's words.

"No! No! It's not a stupid thing to say! It's just the same rhetoric we see every day from conservatives! Yeah, that's the ticket!"; 4/9/12, 9:40 AM
Bob Ellison said...: No, wrong. This is a five-Pinochio case. Obama should have known better, for a variety of reasons (Harvard Law Review? Con-Law prof?), but he didn't. He is either lying or stupid. "Judicial activism" is not a football that leftists and rightists throw around; it's a valid argument that people who understand it make sometimes.

Obama did not understand the argument. I think he's stupid. How else to explain Eric Holder?; 4/9/12, 9:40 AM
SGT Ted said...: Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down.

No, its not.

But, liberals NEED it to be that in order to defend Un-Constitutional judicial fiats from the Court or to excuse Un-Constitutional laws being upheld by the same court citing "international law" or 'changing public standards" or "popular opinion" and not the Constitution.; 4/9/12, 9:51 AM
Brian Brown said...: This is a complete misinterpretation of the meaning of "judicial activism"

Which means: Lefitst jurists inventing "rights" out of whole cloth.

Striking down laws is not "judicial activism" and Republicans really don't complain about "judicial activism" in that manner.; 4/9/12, 9:56 AM
roesch/voltaire said...: For years the drum beat from the right has been against so-called judicial activism, but now they march to a different drummer lead by the Republican appointed judges.; 4/9/12, 9:59 AM
ricpic said...: I believe that Obama calling strict constructionist judges activists is a new label from the lefty camp. The 180 degrees nutty wrongness of the label is a red flag indicator of the Punk's desperation.; 4/9/12, 9:59 AM
Tank said...: A good example really of the left's success at corrupting language and molding it for their purposes.

The original conservative meaning of judicial activism related to making up rights not found in documents and legislating from the bench.

The left succeeded in muddying the waters by confusing this with - Judges striking down laws, which is not judicial activism at all, but rather, their proper role.; 4/9/12, 10:00 AM
traditionalguy said...: Another in a long line of "Everybody does it" equivalency arguments to cover up for doing wrong.

Do they have these pieces pre-written and fill in the nouns needed later?

Activism means adding a new Constitutional provision that the Congress and State Leislature would likely never enact due to democratic process.; 4/9/12, 10:03 AM
Franklin said...: Defending negative rights - the federal government can't do something - is different than creating positive rights - the federal government must do something.; 4/9/12, 10:04 AM
edutcher said...: You can make a case that Dubya picked Roberts and Alito because they were "big government" Conservatives, but the judicial activism thing has always been a rallying cry of the Left.

Certainly, Willie and Zero's picks were all hard core ideologues and Presidents from FDR, with his court packing, on have picked judges who advance the Lefty or, at least, Demo, agenda more than Republican Presidents have.

After all, Souter and Warren were appointed by Republicans. You don't see Demos making mistakes like that.

And Jay is right in his definition of "judicial activism". Examples abound.; 4/9/12, 10:07 AM
Joe said...: Judicial activism would be ignoring a plain reading of the US Constitution and finding Obamacare constitutional. The threat to power here is once you start treating the commerce clause at face value, a whole lot of federal power becomes at risk.

(There were recently federal raids of marijuana stores in California. Where is the constitutional authority for this?; 4/9/12, 10:08 AM
Scott M said...: Which means: Lefitst jurists inventing "rights" out of whole cloth.

What would it be called if a "rightest" jurist did it?; 4/9/12, 10:10 AM
Brian Brown said...: roesch/voltaire said...
For years the drum beat from the right has been against so-called judicial activism, but now they march to a different drummer lead by the Republican appointed judges.

Thank you for proving my point.

You wouldn't understand the phrase "judicial activism" if we stapled it to your forhead.

What I do rather enjoy though is the presumption by you statist that anything and everything congress does is "constitutional" and you merrily follow orders from you betters.

Dupe.; 4/9/12, 10:11 AM
Brian Brown said...: What would it be called if a "rightest" jurist did it?

Well, we could or would call it judicial activism too.

The phrase derives from "the right" as a critique of leftist judges though.; 4/9/12, 10:19 AM
dbp said...: "Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down."

The problem is with the misuse of the word "just". Sometimes judicial activism is thrown around without thought, but it is nonetheless a real thing. And the term applies depending on the details of the law and the details of how judges rule on such laws.

In other words, sometimes it is just and other times it is justified .; 4/9/12, 10:26 AM
Pastafarian said...: Conservatives cry "judicial activism" when they see the courts adjudicate based not what the law says, or on what supporting documents indicate the people who wrote the law originally meant with their words; but on how they think things SHOULD be.

Leftists cry "judicial activism" so that they can use tu quoque arguments like roesch/voltaire.

I know that middle-of-the-road types like Althouse love to point to parallels between left and right to show that neither extreme holds the high ground; but there's no parallel here. It's just a tactic of the left to pretend that there is one.; 4/9/12, 10:27 AM
Hagar said...: "Recognizing judicial activism when you see it"; Roe vs. Wade which most people, even quite well educated people, and indeed lawyers, who definitely should know better, habitually refer to as a Federal "law."; 4/9/12, 10:29 AM
Scott M said...: The phrase derives from "the right" as a critique of leftist judges though.

Correct. It's better never to show the bare spot on your underside where the scales have left a small opening, though.; 4/9/12, 10:31 AM
Chuck66 said...: Actually when conservatives say "judicial activism", they usually explain the legal/constitutional reasons why. AA's blog and the Powerline lawyers are good at this, as is National Review.

They don't just use the term because they don't like the ruling, but go into the reasons why.; 4/9/12, 10:51 AM
Methadras said...: "It’s really vacuous. It’s a cheap shot that all politicians love to take because it’s easy to level."

Oh, you mean like racist, bigoted, homophobe, misogynist, etc. is easy to level?; 4/9/12, 11:53 AM
Peter said...: "It’s really vacuous. It’s a cheap shot that all politicians love to take because it’s easy to level."

Yes, you're quite right. I once believed otherwise, but now I can truly see those emanations from the penumbras of the actual text (or at least believe that more enightened beings can see them).; 4/9/12, 12:03 PM
damikesc said...: What would it be called if a "rightest" jurist did it?

Activism --- and also mythological.

Even abortion supporters can admit that Roe v Wade was pulled out of the SCOTUS collective butts on the flimsiest of legal justification.

THAT is judicial activism.; 4/9/12, 12:42 PM
Justin said...: Judges striking down laws, which is not judicial activism at all, but rather, their proper role.

Except when they strike down laws you agree with. Then you label it "inventing rights" or something of the sort. But really, striking down an abortion regulation pursuant to the due process clause is really no different than striking down the ACA pursuant to the commerce clause.

But keep telling yourself that it is if it makes you feel better or smarter or whatever.; 4/9/12, 4:02 PM
Scott M said...: But really, striking down an abortion regulation pursuant to the due process clause is really no different than striking down the ACA pursuant to the commerce clause.

If the abortion freedom gained by striking down a regulation is in any way based on Roe (ie, whole cloth) it's crap from the word go. This isn't a circular argument as this line of debate started with emanations and penumbras (ie whole cloth).; 4/9/12, 4:22 PM
Justin said...: @Scott M.

The commerce clause argument advanced by the ACA challengers here is just as sucseptible to your criticism. You can just as easily say that it was invented out of whole cloth -- in 1995, in US v. Lopez, even more recently than Roe. That view of the commerce clause fit the view of the proponents of "new federalism" on the Court at the time (in particular Rehnquist and O'Connor, who were replaced by Justices who, like the liberal block, in my view do not believe that much in federalism unless it supports their desired outcome).; 4/9/12, 4:49 PM
damikesc said...: Except when they strike down laws you agree with. Then you label it "inventing rights" or something of the sort. But really, striking down an abortion regulation pursuant to the due process clause is really no different than striking down the ACA pursuant to the commerce clause.

Except the Commerce Clause has, literally, no power over non-commerce while the SCOTUS had to use nonsense involving penumbras to legalize abortion.

It's comical and weak and that is why Democrats view Roe v Wade as the only "super-precedent" that dare never be overturned.; 4/9/12, 6:44 PM
damikesc said...: The commerce clause argument advanced by the ACA challengers here is just as sucseptible to your criticism. You can just as easily say that it was invented out of whole cloth -- in 1995, in US v. Lopez, even more recently than Roe. That view of the commerce clause fit the view of the proponents of "new federalism" on the Court at the time (in particular Rehnquist and O'Connor, who were replaced by Justices who, like the liberal block, in my view do not believe that much in federalism unless it supports their desired outcome).

So your argument is that the Founding Fathers, who spelled out in detail the limitations on federal power, decided to include a clause that undid all of it?; 4/9/12, 6:45 PM
Danno said...: Interpreting the law based on the Constitution is not judicial activism. Finding a decision based on emanations and penumbras is judicial activism.; 4/9/12, 9:59 PM
Thomas W said...: I'll have to agree with Ms. Althouse's original comment. I've seen both conservatives and liberals claim "judicial activism" when they don't like a decision. If the Supreme Court strikes down the health care law it will be labeled "judicial activism", and at minimum it would seem to signal a willingness to overturn several commerce clause cases of the last 80 years). If the Supreme Court were to strike down the Defense of Marriage Act, we'd hear the conservatives screaming "judicial activism" even though a strict reading of the constitution would seem to leave the definition of marriage to the states.

Also interesting would be if the Federal bans on illegal drugs were overturned -- after all, 100 years ago it appears the government didn't have the power to outlaw alcohol (thus the 18th amendment), yet today it appears this power has been granted. So would striking down drug laws be judicial activism or strict construction? Or both?; 4/11/12, 1:35 AM