Strengthening Constitutional Self-Government

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My Last, Very Quick Judicial Activism Comment

I know my behavioral view of judicial activism is "strange," but it isn’t dangerous, if only because nobody listens to me. Here’s an example of judicial restraint: Scalia saying the Const. doesn’t say enough for him to anything but abortion policy is left to the legislatures.
Here’s an example of judicial activism: Declaring all laws allowing abortion unconstitutional on the premise that they involve the taking of a human life. Behavioralist that I am, I’m not saying the latter decision is an incorrect interpretation of the facts we have concerning unborn babies and the 14th Amendment. Nonetheless, it’s hard to deny that there’s an activist element in a deicision that prefers the Const. itself to a huge amount of precedent in the midst of a national controversy. WILL vs. JUDGMENT is too simple--to repeat, MARBURY v. MADISON was probably rightly decided but still included some tricky willfulness.

Discussions - 8 Comments

Are you suggesting that we should prefer precedent over the Constitution itself? If so, you have fallen much further into the judicial supremacy trap than me.

There's no question that a SCOTUS decision banning abortion would be judicial activism. But I don't deny that such a thing is theoretically possible on the right. I do deny that it happens often, and I wonder if it ever happens.

Judicial activism has been leftist almost exclusively for quite a while. But not always: Dred Scott, Plessy, Lochner, the various rulings striking down New Deal legislation etc. It's a matter of legitimate controversy whether according to the plain text of the Controversy Lochner was rightly decided. But it was certainly judicial activism. And all I'm saying is that there's such a thing as judicial statesmanship, and the Court's job is someone more complicated than just putting a statute next to the Constitution's text and see if it squares with it. Now let me repeat my view that all activism is necessarily based on a plainly incorrect interpretation of the Const.

I meant, now and in the foreseeable future. I have no worries about the nonexistent prospects, now and in the foreseeable future, of a new Plessy or a new Lochner (and was Plessy really activist anyway?)

I definitely agree that there is such a thing as judicial statesmanship. There are both political and societal reasons for the justices to edge piecemeal toward strict constitutional interpretation, not insist on it right away when it conflicts with a precedent.

Peter: Here you say: "Now let me repeat my view that all activism is necessarily based on a plainly incorrect interpretation of the Const." But earlier you said:

"The amoral or merely behavioral definition of activism is whenever the Court acts to substitute its will for that of the legislature. Now its will may be based on a correct judgment concerning the meaning of the Constitution . . . ."

So, according to your view, which is it?

It's nothing more than, I think, an obvious clerical error. I simply can't proof on screen. I left out the NOT. That is, Lochner was activism although it was not based on a plainly incorrect interpretation of the Const. The hypothetical declaring all laws allowing abortion unconst. would be the same. (And reversing Roe while deciding the partial birth abortion case would have been the same, although it would have been const. justified nonetheless. The same with declaring for the colorblind const. in the recent case we've been discussing.) What made Plessy activist was the racist doctrine more than the decision itself. What I'm worried about, David F., is that in the midst of the emerging libertarian consensus described by various authors that the hyper-activist view of Randy Barnett will come to prevail. I see, for example, the Claremont Review publishing that guy--who is, for example, for Lochner AND for Roe (THAT IS, HE'S COMPLETELY WRONG) and for all manner of individual rights judicial activism and who saw in Lawrence v. Texas a new birth of freedom. So although Scalia might be deficient on some levels of deep const. thought, I'm pretty much with him for most practical puroses.

Importing a racist doctrine into a SCOTUS decision would certainly be activist. Also, I don't deny that there are non-judges who would be activist from the right, if they could.

I like Scalia's comment recently at Claremont McKenna College (and for all I know, elsewhere): "I am originalist. I am not a nut."

What does President Bush mean, if anything, when he says that his kind of judge “knows the difference between personal opinion and the strict interpretation of the law”? Every judge sincerely believes that he or she is interpreting the law properly.

Bush’s complaint must be understood in the context of Republican Party history over the last half-century. Ever since Chief Justice Earl Warren and Brown vs. Board of Education (the 1954 school desegregation case), conservatives have complained about “activist” judges and justices who allegedly imposed their own liberal dictates on the country with no legal basis. Taking up this rallying cry is one way Republicans won the South. Even Southern conservatives don’t publicly complain about Brown anymore, of course. But denouncing activist judges is now Republican boilerplate.

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