Tuesday, June 20, 2006

New Term Needed

I propose that we do away with the phrase "activist judge". It's a loaded term that those on the left are trying to co-op. The NY Times often tries to claim that conservative judges are the most "activist", once noting that Justice Thomas has voted to overturn more laws than anyone else on the Court. In an editorial today, the Time wailed about Rapanos/Carabell and the fact that the Conservative wing was substituting its judgment for the elected branches.

Sorry, but that's not how I define activism, and I highly doubt the Times really wants the Court to play a completely passive role. Say for example, the government passes a law that says blacks and Jews can't vote. When the Supreme Court strikes that down, would the Times classify the judges as "activists"? Of course not.

What activism means is when a judge decides to interject his personal views on a subject and then tries to conform the law or the Constitution around it. An activist judge is someone who tries set policy. Here's the test: If a judge thinks a law violates a penumbra or an emanation of the Constitution, that's a pretty good indicator that he's stepping into a policy argument.

So I'm looking for a new word or phrase to replace "activist judges", one that clearly indicates that the judge in question is substituting his personal opinion for the law.

9 Comments:

Blogger David Kirschner said...

Outstanding point. Why not refer to them the same we do politicians who make rules of law: legislators? Just stick the word “judicial” in front of it and presto, “judicial legislators.” This way, when judges overturn laws, whether they were passed by congress or made by a lower court judge, that are otherwise unconstitutional, they will be appropriately interpreting the law; just the way judges are supposed to.

6/20/2006 3:54 PM  
Blogger Jewish Atheist said...

The problem is that you're looking for a phrase that will only work on left-leaning judges. What you describe are maybe "disingenuous" judges or simply "biased" judges. However, there is no objective truth in interpretation -- that's what makes it interpretation.

You don't like penumbras or emanations because rulings based on them go against the way you'd rule, but there's no objective reason that the framers' intent (e.g.) is any more appropriate. IMO, a right to privacy or sodomy or miscegenation is more in the spirit of the constitution (and Bill of Rights) than are some of the originalist interpretations used by right-leaning judges.

The whole thing's probably a farce, anyway. In Bush v Gore, did it just so happen that the conservative Judges' judicial philosophies pointed towards the majority decision and the liberals' went the other way?

Being an Orthodox Jew and presumably having studied Talmud and halakha, you should be more aware than most that for any desired conclusion, there's ALWAYS a way to justify it working backwards.

6/20/2006 6:20 PM  
Blogger Classmate-Wearing-Yarmulka said...

You don't like penumbras or emanations because rulings based on them go against the way you'd rule, but there's no objective reason that the framers' intent (e.g.) is any more appropriate. IMO, a right to privacy or sodomy or miscegenation is more in the spirit of the constitution (and Bill of Rights) than are some of the originalist interpretations used by right-leaning judges.

But if that's the case then the Constition is almost completly open ended; I can probably make an arguement that almost everything goes against the Constitution.

The problem is that you're looking for a phrase that will only work on left-leaning judges. What you describe are maybe "disingenuous" judges or simply "biased" judges. However, there is no objective truth in interpretation -- that's what makes it interpretation
It's also quite possible for a conservative justice


That's simply not true- it just happens to work out that way better with liberal justices. Scalia-types are just a bit more consistent. Take flag-burning for example. I don't think it would be wrong to guess that Scalia doesn't like it. But he also knows that it violates the First Amendment. Of course, you can make an arguement that burning a flag shouldn't be considered "speech". But he doesn't do that. He ignores his personal beliefs focuses instead on the law.

6/20/2006 6:54 PM  
Blogger Jewish Atheist said...

Flag burning's too obvious. Especially as political speech, can't be construed as obscene, etc.

6/20/2006 7:22 PM  
Blogger David Fryman said...

>> It's a loaded term that those on the left are trying to co-op.

As opposed to those on the right who are oh-so-much more honest and impartial in branding left-leaning judges as "activist".

6/26/2006 5:19 PM  
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