Talk:Judicial activism

Recent updates, minor lead changes

I've modified a few of the recent changes by Rich Norwood. I largely agree with the changes, but the few things I changed, I've explained below.

• I changed the lead sentence, trying to integrate both versions. Judicial activism, as the term's used, doesn't need to involve precedent, and certainly not precedent meaning other cases. Also, there are cases that overturn long standing precedent that aren't considered "activist", or at least not widely so. The "personal preference" definition comes generally from the definitions used in the definition section. If this is controversial, we can find a cite that's specific for it. I also removed the specific U.S. reference in the first sentence, as per the concerns over the global applicability of the article.
• I added a brief intro to the definition section for context, but not as much as before.

The cleanup was good, especially in the debate section. I invite discussion on the minor things I changed above. Thanks Shadowjams (talk) 21:36, 11 June 2010 (UTC)

Why the Reluctance by Liberals to Invoke the Ninth Amendment?

The argument against what is commonly referred to as judicial activism is that when the original thirteen American colonies ratified the constitution, this is what they were—or thought they were—signing on to; likewise each state which subsequently joined the union. They knew the constitution could be changed, but only by an amendment process which the framers made very difficult to achieve to prevent capricious tinkering with the document.

Conservatives charge that liberals have turned this backwards by having politically sympathetic jurists in effect amend the constitution by judicial fiat (decree) and have ruled in recent times little differently than would have a Russian tsar of yore. After such a de facto amendment by the courts, it is now incumbent upon those unhappy with the decision to try to amend the constitution by the legitimate and rigorous process as directed by the framers. In effect, the courts have, since Chief Justice Earl Warren, staged a bloodless coup d'état against the democratic system of the United States.

For example, since the United States Constitution does not mention or allude to abortion, many cite Roe vs. Wade (including even some who support legalized abortion but object to the decision on constitutional grounds) as a salient example of judicial misconduct; jurists substituting their own personal opinions for what constitutional mandates actually are as written and agreed to when states joined the union. The decision is supposedly based upon a “right to privacy” which the majority decision acknowledges is not explicitly found in the constitution. Instead, the decision maintains it is “implied.” Therefore, the right to an abortion is a right that is implied by a right that is also implied.

This reasoning is derided by conservatives and constructionists as totally specious and renders the constitution virtually meaningless. In effect, it becomes nothing other than what the majority of nine unelected justices say that it is. This, in effect, is tantamount to transforming the United States into an oligarchy as opposed to a democracy as all the court needs is a relatively small political minority to prevent a constitutional amendment overriding its decisions or the impeachment of its majority jurists.

Since Earl Warren, judicial activism has become synonymous with liberalism, though during Franklin Roosevelt’s administration it had been conservative jurists intervening in FDR’s New Deal social legislation. Liberal activism has generally been in regard to the expansion of individual rights and the striking down of laws that prevented the application of said rights (such as anti-abortion laws). In Roe vs. Wade, the majority decision justified its invoking of the right to privacy on the fact that the Court had previously “found” such a right even though it is not explicitly stated in the constitution. As an example, it cited Griswold vs. Connecticut which found laws against contraceptives to be unconstitutional.

In respect to the Griswald decision, Justice Arthur Goldberg did not sign on to the majority decision but rather chose to write a concurring one. In his decision, he expressed his opinion that the majority decision should have been based upon the Ninth Amendment rather than on fanciful “interpretations” such as trying to derive a right to privacy from seemingly unrelated matters such as the constitutional proscription of quartering troops in one’s house against the owner’s will. Justice Goldberg appeared to feel that the majority decision gave the distinct impression that the court was legislating from the bench which was unnecessary since the Ninth Amendment seems to provide a legitimate constitutional reason for striking down laws regarding such personal matters.

The Ninth Amendment states that because the framers were enumerating certain rights within the Bill of Rights, that that did not necessarily mean that there were not others not included within that enumeration. The question then arises, who decides what these other possible rights might be? The answer to that seems obvious to me: the courts.

Why would it be necessary to state that Congress or the president decides such matters when Congress already has the right to legislate and the president has the right to sign or veto such legislation? If Congress feels as though there is another right not named within the constitution, then it could simply either make a law affirming such or refrain from making a law denying such. In other words, the framers would have had no need to include an amendment (the Ninth) stating what had already been stated elsewhere. Therefore, the right to name such unmentioned rights within the constitution must lie with the judiciary by default.

In regard to abortion, for example, invoking the Ninth Amendment would have seemed to have been far more reasonable than resorting to the verbal gymnastics that the court is so often criticized for in order to get the result its majority wants. This would be especially strong in the case of abortion as anti-abortion laws did not begin to appear until the 1820s, long after the constitution was ratified. Therefore, proponents of the original intent theory of constitutional law could not have made a case that since abortion was illegal at the time the constitution was ratified then it is obviously constitutional to outlaw abortion.

In this light, I have never understood why the majority rejected Justice Goldberg’s reasoning in Griswald (and since) invoking the Ninth Amendment which could have also been invoked with Roe and numerous other decisions which expanded individual rights as liberals generally want to do. They would still have gotten the effect they wanted and perhaps avoided much controversy and hard feelings on the part of many by advancing a constitutional theory that constructionists might be hard pressed to counter logically and convincingly. Does anyone have any insights on this concept?HistoryBuff14 (talk) 20:55, 14 August 2010 (UTC)

This talk page is not a discussion page for the topic of the article, but a place to discuss the writing of the article. Rick Norwood (talk) 12:18, 15 August 2010 (UTC)

--Rick, granted, but my admittedly lengthy post opens an entirely new perspective regarding the article’s subject matter (in regard to the United States situation) that might be addressed under the “debate” section.

I was hoping that someone more knowledgeable than myself might have a reason why those favoring what is, correctly or otherwise, referred to as “judicial activism” in support of liberal causes would be reluctant to invoke what appears (at least to me) to be a viable and perhaps more legitimate constitutional mechanism to achieve the results they want than the arguments heretofore advanced which have led to such acrimony.

I think that my post here accurately summarizes the views of many who deride judicial activism without my having lost objectivity. I am not necessarily stating my own views but merely echoing those of a great many others to lend perspective to the subject matter.

I thought perhaps that under the debate section the Ninth Amendment argument could be cited as alternative justification for judicial activism, citing Justice Goldberg’s views on the subject. Then contrary opinions might be cited why constructionists and conservatives would reject such an assertion of the Ninth Amendment and why even liberals seem reluctant to invoke the amendment in support of the results they desire in selected cases.

The problem is that I don’t know why liberals seem so reluctant to do so, and I was hoping someone with more knowledge and insights upon the subject might be able to answer the question and perhaps insert a brief subsection under the debate section mentioning the pros and cons of invoking the Ninth Amendment in support of the expansion of rights rendered in controversial decisions such as Roe.

I personally don’t fully understand what exactly they are which is why I made the post on the talk page. Other arguments for and against judicial activism are cited in both directions. So why not address the Ninth Amendment within the article? For example: “In Griswald, Justice Arthur Goldberg suggested that the Ninth Amendment should have been invoked…though even liberal jurists appear reluctant to accept his reasoning, [perhaps] because….” Thanks.HistoryBuff14 (talk) 17:24, 15 August 2010 (UTC)

If you want to write something citing Goldberg, that of course would be fine. But don't get into the whole liberal vs. conservatism thing unless Goldberg does, or you'll find yourself waist deep in the big muddy. Serious legal scholars have known more than a hundred years that "judicial activism" means "rulings I don't like". Rick Norwood (talk) 12:27, 16 August 2010 (UTC)

--That’s simplistic. Because the checks against the judiciary are so inherently weak within the (U.S.) constitution, as the situation stands now judges are analogous to a hypothetical scenario where pitchers in baseball were given the power to call their own balls and strikes. Judges alone decide what power they have or don’t have, effectively subject only to higher courts up to the Supreme Court.

Since in a true democracy a candidate being elected with 60% of the vote is considered a “landslide,” trying to muster the super-majority necessary to either impeach judges or effect a constitutional amendment is virtually impossible as those who agree with the effect of a ruling care little for means, but only ends. This is a legitimate consideration.

State courts have drifted even more extreme. Upon the passage of Proposition Eight in California which defined marriage as a union between a man and a woman, one of the state Supreme Court judges actually ruled that a state constitutional amendment was unconstitutional under the state constitution! Though the other judges (albeit reluctantly) upheld the amendment, that a judge would actually attempt to overturn one of the only two meager checks against the judiciary is extremely troubling. It seems that now the will of the majority cannot amend a constituition even by the means directed within the constitution if a judge doesn't personally agree with the substance of the amendment! —Preceding unsigned comment added by HistoryBuff14 (talk • contribs) 13:58, 16 August 2010 (UTC)

Adding some sourced changes is fine, but let's try to avoid having political debates on talk pages. Shadowjams (talk) 16:19, 16 August 2010 (UTC)

Bush vs. Gore

Is Bush vs. Gore the most extreme example of this? (source 1) The justices all voted along party lines: 5 conservatives justices voting to give Bush the presidency. Essentially the supreme court acted as a micro electoral college and voted to give Bush the presidency, regardless of the law at hand. —Preceding unsigned comment added by [[Special:Contributions/71.194.190.179|71.194.190.179]Italic text] (talk) 15:52, 26 October 2010 (UTC)

--Others make the same claim regarding the actions of the Florida Supreme Court which essentially ignored the U.S. Supreme Court’s admonition that they could not interpose the Florida constitution in decisions regarding a federal election. Thus, the Florida State Legislature had the right to write the voting laws without such being subject to Florida constitutional scrutiny, only federal. Even leaving this aside, for the sake of argument, the majority opinion of the state court, allowing poll counters to “discern the intention of the voter,” i.e., give votes to candidates when none were punched based upon how the voter had voted elsewhere on the paper punch ballots, might be viewed as outrageous by many.HistoryBuff14 (talk) 14:16, 27 October 2010 (UTC)

On the one hand, I think that Bush v. Gore is clearly Judicial Activism at its worst. But on the other hand, I don't think a reference to a newspaper editorial is a good enough source. To cite this case, I think you would need to quote an article by a legal scholar. Rick Norwood (talk) 19:24, 27 October 2010 (UTC)

--Is this intended as a serious statement? The Florida Supreme Court overturns longstanding mundane election laws (that were probably not in the least partisan or controversial when enacted), the procedures as to how votes are counted and deadline dates, and that is not judicial activism, while the U.S. Supreme Court simply overturning such actions (regarding a federal election according to a precedent that, when such was finally cited (Bush camp lawyers were remiss in not doing so in the initial hearing before the state court), caused two liberal members of the state court to change course and uphold the final certified count), is judicial activism (“at its worst,” none the less)? Even the Florida Supreme Court’s chief justice (one of the defecting liberals) admonished the majority that they were provoking a constitutional crisis. (McPherson v. Blacker, 146 U.S. 1,35 (1892) - precedent referred to).HistoryBuff14 (talk) 22:02, 27 October 2010 (UTC)

History Buff: The example list here has always been problematic and that's why we've added some very specific criteria about what's required for an example to be added. There are plenty of examples that can lean both left and right. Editors certainly needn't agree with a particular decision to recognize that it fits the definition as we've objectively defined it. I don't think there's a lot of controversy about that definition, or about even this particular case. In fact, although it doesn't strictly meet the criteria right now, I'm sure commentators have used it as an example.

As for this particular example, I'd suggest we find some wording to indicate that there are opinions that both the Florida Supreme Court's decision, and the U.S. Supreme Court's decision are considered activist by various people. It's a small issue, and given the context of the article the topic doesn't warrant an extended discussion (at least not yet; it's a good day when this article's expanded enough that these kind of issues are salient).

This really isn't the place to argue opinions about most things like this, especially political things. Let's keep the discussion focused on the article and how it can be improved. I know I've been involved in its evolution, but I think its looking better than it has in a long time; it needs some expansion though. On that point I'd like to hear some good ideas about how to improve it. Shadowjams (talk) 05:46, 28 October 2010 (UTC)

--Shadowjams, I realize you are trying to be fair and serve as the voice of reason here. For this I commend you. However, it is not possible to cite specific cases as examples of judicial activism without a political connotation. The poster I was responding to asserted that Bush vs. Gore was a supreme example of judicial activism without even giving any reasons to justify such a characterization. In my last response, I give my reasons why it was the Florida court’s actions that qualified as such as opposed to the action (reaction, actually) of the federal court. In all due respect, it was not me who started this section.

For the record, I believe that Mr. Gore should have been president of the United States because he received the most popular votes nationwide and that the electoral college should be abolished in favor of a popular vote decision. Moreover, I believe that more (albeit by a razor thin amount) Florida voters intended to vote for Mr. Gore than Mr. Bush, but were confused by ballot designs.

However, these are considerations of equity and not law. The electorate has the right to make laws through its elected representatives and courts do not have the right or authority to overturn the stated will of the people even if in retrospect an unintended injustice occurs. One does not change the rules of the game after it is over and unjust remedial means are not justified even by a just end. The time to protest ballot designs and election laws was before the election, not after. Neither the controversial paper-punch voting system nor the election laws indicating when recounts were warranted and deadlines for such were innovations. Both had been in place for years and no one protested until this election.

The greatest injustice in American history is that slavery was once both legal and constitutional. Even after four years of horrendous bloodshed which effectively decided the issue in favor of correcting the manifest injustice, the elected officials of the nation felt the need to follow the letter of the U.S. Constitution and officially abolish slavery by a constitutional amendment.

I disagree with the definition of judicial activism stated at the beginning of the article. I believe that if jurists impose their own personal views in place of what a law or a constitution actually states, then that is the definition of judicial tyranny, a subject for which there is also a Wikipedia article. The definition of judicial activism should be courts that do not defer to the will of the elected representatives of the people by overturning laws on constitutional grounds. This does not necessarily connote that in such instances the jurists are acting improperly, let alone unjustly. Judicial activism is in some cases warranted.HistoryBuff14 (talk) 13:49, 28 October 2010 (UTC)

I was going to respect Shadowjam's request not to debate this, but I really do think Bush v. Gore should be in the article, provided it is referenced with a citation from an expert on constitutional law. The Supreme Court ruled that the ballots should not be counted, that's clearly judicial activism. Rick Norwood (talk) 14:15, 28 October 2010 (UTC)

--The U.S. Supreme Court (in effect, albeit not technically) upheld Florida election laws as voted into effect by the duly elected representatives of the people of Florida. That is not the definition of judicial activism. The Florida Supreme Court overturned election laws enacted by the state legislature long before the election. That is the very definition of judicial activism. Overturning a lower court’s opinion per se is not judicial activism.HistoryBuff14 (talk) 14:37, 28 October 2010 (UTC)

No, overturning laws is not per se judicial activism -- if a law is unconstitutional. In any case, whatever you or I think, Bush v. Gore should be added to the article if and only if a reputable scholar of constitutional law says that it is judicial activism. Rick Norwood (talk) 16:36, 28 October 2010 (UTC)

Definition of Judicial Activism

Before anyone debates whether or not certain decisions represent instances of judicial activism, one should ask whether or not pointing to instances of what it is (or of what it isn't) is sufficient to define it. Lists of examples, although they are useful in some respects, do not constitute definitions. In my opinion, the article on Judicial activism provides little if any insight into the source or nature of judicial activism.

Judicial activism is a process by which the intent of the law is altered. The intent of the laws of the United States is established by the Constitution, by Congress and by judicial precedent. One reason for creating three branches of government in the Constitution was the need to stabilize the intent of the laws. The meaning of the laws cannot be merely what someone thinks it is, even if the speaker is a Justice of the Supreme Court. Living Justices deserve respect, but no more respect than do former Justices or the framers of the Constitution.

A charge of judicial activism implies that the intent of the laws has been independently altered by the Court. This may occur in a variety of ways. First, the text of the Constitution may leave room for alternative interpretations of the intent of its words. Second, the texts of existing laws may leave room for alternative interpretations of their words. Novel interpretations can be used to introduce bias. Third, judicial precedents cited by the Court to support a decision on a new case may not really pertain to the same issues as those addressed in the new case. Finally, the question of sameness is inextricable from that of the relevance of certain facts to the merits of a case. The interpretation of the law can be greatly affected by the evidence that is allowed into court.

The basic question that is present in each of these sources of bias is the true meaning of "sameness." Judicial activism occurs when things that are not the same are treated as if they were the same, with the result that the intent of a law is altered. Charges of judicial activism imply that the Court's decisions show an intentional bias in their interpretation of 'sameness' which favors the rights of one group (e.g. all individuals, certain individuals, corporations or organizations) over another. In order to support a charge of judicial activism, it is necessary to demonstrate its source. One must show that the Court has manipulated the concept of sameness in order to justify its decision rather than to produce a just decision. Unintentional bias differs from judicial activism. It is instead judicial error. Court decisions that attempt to apply existing laws to questions that are not well-settled by existing laws also differ from judicial activism. In such instances, it is up to the Congress to clarify the laws on these questions.

Judicial activism may involve a single case or a series of cases. When one claims that the Supreme Court (or any lower court) has been shifting to the right over time, one means that the Court has acted with a consistent bias over time by taking positions that lie to the right of the Constitution or of the texts of existing laws or of previously decided cases. The charge may also mean that the Court has biased its application of the law by using court procedures to filter out facts that are relevant to deciding the merits of cases. Thus, the claim that the Court has shifted away from established law is a serious claim. It implies a course of conduct that seeks to circumvent established law. — Preceding unsigned comment added by Thetruthisoutthere33 (talk • contribs) 22:34, 21 February 2012 (UTC)

recent edit skirmishes -- External links tag

I see a series of deletions and reversions, with very little reasoning or discussion justifying same. Accordingly, editors are encouraged to give particular justifications for particular edits here, rather than simply editing without any or thought out explanations. Thanks. --S. Rich (talk) 23:41, 8 October 2011 (UTC)

Further comment: there has been a deletion with justification as to one particular EL. But I do not see explanations as to any of the others. Which WP:ELNO criteria is of concern? Thanks.--S. Rich (talk) 00:12, 9 October 2011 (UTC)

The Article That Brown v. Board of Education was an Example of Judicial Activisim Is Very Questionable

Associate Justice Felix Frankfurter, an outspoken advocate of judicial restraint, agreed with the majority, as did Associate Justice, and mentor of future Chief Justice William Rehnquist, Robert Jackson. Robert Jackson also at first disagreed with the Brown family until the case progressed.JoetheMoe25 (talk) 02:05, 28 February 2012 (UTC)