[UNTeMac]

Why are most Republicans getting up in arms about activist judges trying to legislate from the bench on the issue of gay marriage and yet stayed quiet when Roy Moore tried to force religion into government endorsement with his monument of the 10 commandments?

Just a thought. Discuss.

[SimeyTheLimey]

Originally posted by UNTiMac:
Why are most Republicans getting up in arms about activist judges trying to legislate from the bench on the issue of gay marriage and yet stayed quiet when Roy Moore tried to force religion into government endorsement with his monument of the 10 commandments?

Just a thought. Discuss.

There is hypocracy all around on the "activist judge" issue. However, your examples aren't good comparisons. A judge who "legislate from the bench" creates new law in deciding a case. A good example would be Roe v. Wade, which created a constitutional right to abortion -- more or less out of thin air.

In contrast, Roy Moore may be wrong to do what he did, but putting a monument up didn't change the law one iota, nor did it decide any case before him. It does not make him in any way an activist judge in the way most people (both right and left) mean it.

Actually, the whole concept is a bit silly. All judges are activist because in the common law system, judges have a part to play in the development of the law. It is inescapable, inevitable, and utterly necessary that a judge make new law when the case demands. Really all that people are saying when they say activist judge legislating from the bench is that the judge at most overreached his discretion. For example, when judges started taking over school districts to implement school bussing schemes. Something like school bussing is arguably beyond judicial competence. Or they might be complaining that the opinion was a radical departure from previous case law. But that is just a process argument because previous case law is judge-made law too. Whether the law develops in a series of cases or one landmark one doesn't alter the fact that it is a common law development, not statutory law (i.e. not the work of a legislature).

But more often when people complain about activist judges they simply mean that the judge came to an opinion they disagree with. That's not just a conservative error. Liberals do it too. Bush v. Gore is a good example of liberals complaining about the judiciary.

[zigzag]

Originally posted by SimeyTheLimey:
There is hypocracy all around on the "activist judge" issue. However, your examples aren't good comparisons. A judge who "legislate from the bench" creates new law in deciding a case. A good example would be Roe v. Wade, which created a constitutional right to abortion -- more or less out of thin air.

I agree with everything in your post except the "thin air" part. Insofar as the Constitution doesn't mention contraceptives, abortion, or sodomy, Roe, Griswold and Lawrence might represent judicial activism, but I wouldn't characterize them as "out of thin air" - they simply rely on a broad reading of the 9th Amendment. Activist, perhaps, but not without foundation.

[BRussell]

Another interesting strategy the social conservatives are using is to prevent courts from reviewing law. The House just passed the Protection of Marriage act, which strips all courts, including the Supreme Court, of jurisdiction over the Defense of Marriage act. I guess it's protecting the defense of marriage.

And conservatives have introduced even broader bills designed to take jurisdiction away from courts on basically all conservative laws, mostly laws supporting religion. I forget where it says in the Constitution that Congress can do that, but I guess they can, even though it seems like it would severely unbalance the separation of powers. In theory, it's kind of scary. Could they pass some law that violates our fundamental constitutional rights, and then prevent judicial review?

[SimeyTheLimey]

Originally posted by zigzag:
I agree with everything in your post except the "thin air" part. Insofar as the Constitution doesn't mention contraceptives, abortion, or sodomy, Roe, Griswold and Lawrence might represent judicial activism, but I wouldn't characterize them as "out of thin air" - they simply rely on a broad reading of the 9th Amendment. Activist, perhaps, but not without foundation.

I said more or less thin air. It is obviously a debatable issue. However, Griswald wasn't decided on the 9th Amendment. Douglas was the only justice to suggest that, but in fact Douglas explicitly said that he wasn't suggesting the Ninth Amendment created a right to contraception. The majority relied on the eminations of penumbras stuff -- which sounds pretty close to thin air to me. Actually, I'd say an emination from a penumbra sounds like something rather close to vacuum to me.

AFAIR Roe wasn't decided on the 9th Amendment either. The logic of that opinion has always kind of escaped me. I'd call it results-driven more than anything else. But my point wasn't to single out liberal opinions as being uniquely precedentless judicial leaps. There are conservative opinions like that too. I'd point to Bowers v. Hardwick, for example.

[UNTeMac]

Originally posted by SimeyTheLimey:
There is hypocracy all around on the "activist judge" issue. However, your examples aren't good comparisons. A judge who "legislate from the bench" creates new law in deciding a case. A good example would be Roe v. Wade, which created a constitutional right to abortion -- more or less out of thin air.

I saw the difference when I posted but I wanted to point out that parts of the conservative base in this country are steadily trying to secure a foothold on the law that can't be removed. It's no longer about helping this country. It's about removing the ability of opposition thinkers to challenge any new provisions by the government.

As for the Roe v. Wade issue...haven't the courts done similar things with a lot of laws? The opinion in Roe v. Wade uses the 9th and 14th amendments to uphold a woman's control over her own reproduction. Is this not how it works in every supreme court case where a law is removing previously unenumerated rights is challenged?

EDIT: here's the link to the majority opinion on the case.
http://caselaw.lp.findlaw.com/script...&invol=113

[MacGorilla]

"Activist Judges" is quite silly, Judges have been making laws, via their decisions, for centuries. Its called Common Law and it dates back England in the 1700s. Every state in the US uses common law as the base of their law system, except Louisiana, which is based on the Napoleonic code.

[SimeyTheLimey]

Originally posted by UNTiMac:
As for the Roe v. Wade issue...haven't the courts done similar things with a lot of laws? The opinion in Roe v. Wade uses the 9th and 14th amendments to uphold a woman's control over her own reproduction. Is this not how it works in every supreme court case where a law is removing previously unenumerated rights is challenged?

EDIT: here's the link to the majority opinion on the case.
http://caselaw.lp.findlaw.com/script...&invol=113

I don't want to get into the specifics of Roe. The opinion is actually a good deal less clear-cut than activists on both sides tend to admit. It also isn't the law any more because a later case called Casey rewrote most of it.

The thing about Roe is that it discovered a right that nobody previously thought was a constitutional right. Abortion was something that states had been in the habit of legislating. People got upset (and they are still upset) because they felt that this was the judiciary cutting off their ability to debate and decide the issue at the state level through their legislatures.

Of course, that isn't unique or necessarily wrong (see Lawrence's overturning of state sodomy laws for an example of how I think this can be right). But it is interesting isn't it that it is basically the mirror image of what you complain about. Constitutionalizing an issue is getting something into law and then making it virtually impossible for the other side to debate the issue and get the law changed. That's a similar goal to that being tried on same-sex marriage. Make something part of law, and make it hard for the other side to reverse using the normal tools of government. Different tactics, perhaps, and a different issue, but I'd say the political motivation is very similar.

BTW, there is an interesting discussion on Volokh about whether the bill you refer to is constitutional.

[zigzag]

Originally posted by SimeyTheLimey:
I said more or less thin air. However, Griswald wasn't decided on the 9th Amendment. Douglas was the only justice to suggest that, but in fact Douglas explicitly said that he wasn't suggesting the Ninth Amendment created a right to contraception. The majority relied on the eminations of penumbras stuff -- which sounds pretty close to thin air to me. Actually, I'd say an emination from a penumbra sounds like something rather close to vacuum to me.

AFAIR Roe wasn't decided on the 9th Amendment either. The logic of that opinion has always kind of escaped me. I'd call it results-driven more than anything else. But my point wasn't to single out liberal opinions as being uniquely precedentless judicial leaps. There are conservative opinions like that too. I'd point to Bowers v. Hardwick, for example.

No argument, I just thought "thin air" was a little strong, even with the qualifier. I recognize that you weren't trying to single out liberal opinions.

As for Griswold, Douglas doesn't rely solely on the 9th Amendment, but he cites it, and the concurrence(s) focus almost entirely on the 9th (I believe it's Goldberg, not Douglas, who says that the 9th doesn't specifically create a right to contraception, but does protect a broad spectrum of fundamental rights not otherwise enumerated). That said, it was incorrect of me to lump all the cases together as 9th Amendment cases - Griswold was sort of a grab bag, and Roe and Lawrence cited the 14th. What I should have said is that I think Goldberg's concurrence in Griswold, which points to the 9th as the underlying source of the right, is the soundest approach, and that everything else stems from there. I have trouble reading the liberty clause of the 14th in isolation, but maybe that's why I'm not a Supreme Court justice.

Anyway, we're pretty much in agreement. My main problem is that every time I hear Griswold cited, I think of Chevy Chase.

[zigzag]

Originally posted by SimeyTheLimey:
The thing about Roe is that it discovered a right that nobody previously thought was a constitutional right. Abortion was something that states had been in the habit of legislating. People got upset (and they are still upset) because they felt that this was the judiciary cutting off their ability to debate and decide the issue at the state level through their legislatures.

This is quibbling, but I would rephrase it to say that in Roe and Griswold, the Court found a right to privacy in the Constitution, and that medical decisions such as abortion and contraception are (to a limited extent) within the scope of that right. I'm sure you recognize this, I just don't want people to get the impression that the Court discovered a right to abortion in isolation.

Now, if they would only find a right to get free Macs . . .

[cpt kangarooski]

BRussell--

Another interesting strategy the social conservatives are using is to prevent courts from reviewing law. The House just passed the Protection of Marriage act, which strips all courts, including the Supreme Court, of jurisdiction over the Defense of Marriage act.

No, it only does that to federal courts. The state courts are unaffected by that particular bill.

I forget where it says in the Constitution that Congress can do that

Article III, sections 1 and 2. Basically the Supreme Court is established by the Constitution, but the inferior federal courts only exist when Congress creates them, and can thus be abolished by Congress or limited as directed, provided that seperation of powers are not otherwise offended (e.g. Congress can't tell the courts how to decide, but they can limit jurisdiction so that no decision can occur). The Supreme Court has its original jurisdiction and appellate jurisdiction per the Constitution, but its appellate jurisdiction can be limited by Congress. The original jurisdiction cannot be altered but is more or less useless as a practical matter.

Could they pass some law that violates our fundamental constitutional rights, and then prevent judicial review?

No, I don't think so. Congress' ability to limit the jurisidction of the federal (and state) courts is nevertheless subject to the 5th Amendment's guarantee of Due Process. It would probably be unconstitutional for them to try to shut down the entire judicial system at all levels nationwide. Lesser restrictions occur frequently (e.g. state courts' jurisdiction to hear copyright cases was revoked by Congress because they wanted the federal courts to be the only courts to hear 'em; federal courts can't hear cases in diversity where diversity is not total between plaintiff and defendant or the amount in contraversy is $75k or less.) and no one seems to complain much, so the real issue is more if there is judicial review at all, somewhere, rather than having it everywhere or in a particular court.

Of course the real thing is that when Congress starts to seriously **** around with the judiciary this could spawn a major crisis that, if sufficiently extreme, could bring down the Republic. This is why they don't usually do this sort of thing often; it could be bad. Purely as a matter of politics, Congress would be well advised to leave the courts alone for the most part.

Simey--

The majority relied on the eminations of penumbras stuff -- which sounds pretty close to thin air to me.

I find penumbras to be pretty solid; a lot of the enumerated guarantees of civil rights can be trivially foiled if we take them literally (e.g. A has a right to speak freely, but B does not have a right to listen so A may freely talk -- to no one). Since it wouldn't make any sense to permit infringements to occur through clever means any more than blatant ones, there must be a lot of additional rights around in order for the enumerated ones to make sense and be viable.

The concept of privacy from government regulation in matters that are supremely personal doesn't seem to be that far a stretch to me.

zigzag--

My main problem is that every time I hear Griswold cited, I think of Chevy Chase.

Yeah, me too.

[SimeyTheLimey]

Originally posted by zigzag:
Anyway, we're pretty much in agreement. My main problem is that every time I hear Griswold cited, I think of Chevy Chase.

And every time I hear "Chevy Chase" I think of a suburb in Montgomery County, Maryland.

[Millennium]

Originally posted by MacGorilla:
"Activist Judges" is quite silly, Judges have been making laws, via their decisions, for centuries. Its called Common Law and it dates back England in the 1700s. Every state in the US uses common law as the base of their law system, except Louisiana, which is based on the Napoleonic code.

"Common law", despite the name, does not actually create new law. Rather, it sets up a framework under which existing law is to be interpreted. This is why precedent is so important for legal cases in common-law systems.

[SimeyTheLimey]

Originally posted by Millennium:
"Common law", despite the name, does not actually create new law. Rather, it sets up a framework under which existing law is to be interpreted. This is why precedent is so important for legal cases in common-law systems.

Judges do create new law. To take just one example, the Miranda rule is law, and it is entirely judge made.

That's not to say that every decision is new or ad hoc. Most cases follow established precedent. But because no two situations are ever exactly the same, there is almost always some innovation. However, not all cases are precedential. In fact, the vast majority are not. And those that are, are only precedential in their own jurisdiction. Everything else is just more or less persuasive.

[cpt kangarooski]

Millennium--

"Common law", despite the name, does not actually create new law. Rather, it sets up a framework under which existing law is to be interpreted. This is why precedent is so important for legal cases in common-law systems.

No, the common law really is new law out of nothing. But it is extremely slow, and a lot of it dates back hundreds of years because on the whole people have been pretty happy with it and it does change as needed.

Take a look at contract or tort law for example. They're pretty much judicial in origin, with a few statutes mixed in here or there to tweak the common law the way the legislative body desires. As opposed to, clearly statutory law such as, I dunno, sales law or (of late) criminal law.

We ALSO have binding precedents interpreting statutory law. But don't be confused into thinking that that's all there is.

[SimeyTheLimey]

Originally posted by cpt kangarooski:
Millennium--


No, the common law really is new law out of nothing. But it is extremely slow, and a lot of it dates back hundreds of years because on the whole people have been pretty happy with it and it does change as needed.

Take a look at contract or tort law for example. They're pretty much judicial in origin, with a few statutes mixed in here or there to tweak the common law the way the legislative body desires. As opposed to, clearly statutory law such as, I dunno, sales law or (of late) criminal law.

We ALSO have binding precedents interpreting statutory law. But don't be confused into thinking that that's all there is.

Agreed. I think also people aren't aware of just how much statutory law is just codification of judicial decisions. That's the case even in technical fields, like, say, tax law, or civil procedure, or the federal rules of evidence.