Honestly, based on what has been posted, I feel that the term "judicial activism" comes down to an individual's interpretation of a ruling and what that person feels about the result. I don't think I can agree that there is a legitimate "judicial activism" label. If I were racist, I could cry "judicial activism" regarding any number of precedents and laws that were overturned to ensure civil rights, for instance. If I were an gender-biased person, the inclusion of females could inspire the cry of judicial activsm.

 

I think it's a subjective, rather than objective, term, and therefore there aren't any concretely measurable criteria which can be applied in order to definitevely label a judge as a "judicial activist".

 

If you will listen to the remarks of Madam Sotomayor, a leading candidate for the soon vacant post, you will see what is meant by "judicial activism".

Contrary to what she believes and supports, we already have a legislative branch of government.

I can certainly question the validity of the logic stated. Shooter's explanation seems logical to me so I have no argument with his interp. While I try to stay on top of many things, judges decisions and their reasoning is not one that I'm well versed on.

 

The purpose of the original question was simple. Every time we talk about judges someone mentions "legislating from the bench" or "judicial activism" yet I don't think most people can put together a logical definition of what that really means. As I stated, its my opinion that many yell those terms when they don't like a decision.

 

So, in the interest of germane discussion, I threw out the question.

 

That makes no sense. If you have no clue as to what JA is (as you have admitted), how can you question anyone's definition of it, or the logic behind their definition?

 

If I know nothing about quantum physics, how can I question someone's logic involving a quantum physics theory? I can't (or shouldn't since I don't know enough about the topic to even say whether someone's logic involving a conclusion on quantum physics is appropriate).

Edited May 7, 200917 yr by leatherneck

That makes no sense. If you have no clue as to what JA is (as you have admitted), how can you question anyone's definition of it, or the logic behind their definition?

 

If I know nothing about quantum physics, how can I question someone's logic involving a quantum physics theory? I can't (or shouldn't since I don't know enough about the topic to even say whether someone's logic involving a conclusion on quantum physics is appropriate).

 

 

Not a good comparison since quantum physics (I'm assuming) deals in absolutes. No way in heck can you say "judicial activism" deals in absolutes or black and white. So while someone could be completely making something up about quantum physics and I'd have no clue if they were right or wrong, my brain is capable of deducing if the definition of judicial activism makes sense logically.

 

I should add. When I said "no clue" I should have said "no clue because it seems everyone has their own definition." Its a nebulous term and a "throw away" term to argue against the other side's positions.

Edited May 8, 200917 yr by Clyde

Not a good comparison since quantum physics (I'm assuming) deals in absolutes. No way in heck can you say "judicial activism" deals in absolutes or black and white. So while someone could be completely making something up about quantum physics and I'd have no clue if they were right or wrong, my brain is capable of deducing if the definition of judicial activism makes sense logically.

 

I should add. When I said "no clue" I should have said "no clue because it seems everyone has their own definition." Its a nebulous term and a "throw away" term to argue against the other side's positions.

 

Perhaps you are right, but I don't think so. I believe that the judiciary does have limitations on its ability to make legislation or to approve legislation that violates the constitution. For example, if the SC issued an opinion upholding legislation that banned the use of hunting rifles, and in its opinion stated that the SC felt that due to the increase in firearm violence, it felt that the legislation was necessary to protect the safety of citizens, I'd consider that judicial activism. If the SC would so hold, it would be placing its own policy beliefs into law and would be approving legislation that violates the Constitution. There is no caveat in the 2nd Amendment that says we have the right to bear arms unless the legislature or judiciary thinks there are safety issues (even legitimate one) associated with gun ownership, nor to the best of my knowledge was it the intent of the Constitution drafters to have such caveat apply. I think that would be a clear case of JA. Agree?

Perhaps you are right, but I don't think so. I believe that the judiciary does have limitations on its ability to make legislation or to approve legislation that violates the constitution. For example, if the SC issued an opinion upholding legislation that banned the use of hunting rifles, and in its opinion stated that the SC felt that due to the increase in firearm violence, it felt that the legislation was necessary to protect the safety of citizens, I'd consider that judicial activism. If the SC would so hold, it would be placing its own policy beliefs into law and would be approving legislation that violates the Constitution. There is no caveat in the 2nd Amendment that says we have the right to bear arms unless the legislature or judiciary thinks there are safety issues (even legitimate one) associated with gun ownership, nor to the best of my knowledge was it the intent of the Constitution drafters to have such caveat apply. I think that would be a clear case of JA. Agree?

 

I agree with your cited example however I don't see how it shows that the public uses the label when they disagree with a decision. My original intent by asking was to show that people only throw the term about when they're unhappy with a decision and that everyone has their own definition of the label.

In trying to apply the definition from the site you list, I wonder if Civil Rights Legislation would be an Activist position.

 

The clear interpretation of the Constitution made by previous courts (Dred Scott comes to mind and the rules that indicated how population was to be counted for districting) held that something such as "seperated but equal" could apply. It was legislated by local governing bodies and yet the Supreme Court goes in a completely different direction in the last half of the 20th century.

 

Is that Activism by the definition of the website or am I misreading it?

 

Just a few points,

 

First, if it was civil rights legislation then it came from the legislature not from the bench and so it would qualify as judicial activism.

 

Second, the 14th amendment had the effect of overturning the Dred Scott decision so the different direction began with the laws that were passed immediately after the civil war and therefore the different direction was initiated long before the last half of the 20th century.

 

Finally, the court decisions relating to civil rights and equal rights for women in the 1970's and late 1960's (i.e. the last half of the 20th century) had their foundation in the 1964 Civil Rights Act and other similar acts passed under Johnson so again, the change in the law had the greatest impact on the changes in judicial decsions (although I do think there were some decisions in that era than amounted to judicial activism.)

Perhaps you are right, but I don't think so. I believe that the judiciary does have limitations on its ability to make legislation or to approve legislation that violates the constitution. For example, if the SC issued an opinion upholding legislation that banned the use of hunting rifles, and in its opinion stated that the SC felt that due to the increase in firearm violence, it felt that the legislation was necessary to protect the safety of citizens, I'd consider that judicial activism. If the SC would so hold, it would be placing its own policy beliefs into law and would be approving legislation that violates the Constitution. There is no caveat in the 2nd Amendment that says we have the right to bear arms unless the legislature or judiciary thinks there are safety issues (even legitimate one) associated with gun ownership, nor to the best of my knowledge was it the intent of the Constitution drafters to have such caveat apply. I think that would be a clear case of JA. Agree?

 

 

Then is it safe to assume that you feel it is unconstitutional to prohibit the private ownership of small nuclear bombs? After all, the constitution doesn't say guns, it says arms. Are there NO limits that the legislature can place on "the right to bear arms" that you feel pass constitutional muster?

Just a few points,

 

First, if it was civil rights legislation then it came from the legislature not from the bench and so it would qualify as judicial activism.

 

Second, the 14th amendment had the effect of overturning the Dred Scott decision so the different direction began with the laws that were passed immediately after the civil war and therefore the different direction was initiated long before the last half of the 20th century.

 

Finally, the court decisions relating to civil rights and equal rights for women in the 1970's and late 1960's (i.e. the last half of the 20th century) had their foundation in the 1964 Civil Rights Act and other similar acts passed under Johnson so again, the change in the law had the greatest impact on the changes in judicial decsions (although I do think there were some decisions in that era than amounted to judicial activism.)

 

Thanks for he response.

 

As to the last paragraph, Brown vs. Board happened 10 years before the Civil Rights Act so the did not have that to go on to end Segregation. So was the '54 Court an activist one in that ruling?

 

I can't recall but was the '64 Act challenged by any of the state's as to the federal government usurping their rights and jurisdiction?

Then is it safe to assume that you feel it is unconstitutional to prohibit the private ownership of small nuclear bombs? After all, the constitution doesn't say guns, it says arms. Are there NO limits that the legislature can place on "the right to bear arms" that you feel pass constitutional muster?

 

 

Fair question. I think the judiciary has to look at the intent of the drafters as to what they considered to be "arms". I think it's reasonable for the judiciary to acknowledge some progression as to the type of arms now available, so as to permit weapons other than black powder rifles. I don't think that progression would include nuclear warheads. I don't think that even the most stringent 2nd Amendment supporter would consider nuclear warheads as arms as the drafters intended the word.

 

So to answer your question, it would not be safe to assume that I feel it is unconstitutional to prohibit private ownership of small nuclear bombs.

I agree with your cited example however I don't see how it shows that the public uses the label when they disagree with a decision. My original intent by asking was to show that people only throw the term about when they're unhappy with a decision and that everyone has their own definition of the label.

 

 

Some folks do, no doubt, unfairly and improperly throw the term about when a decision is made with which they disagree, but that doesn't necessarily mean that there is no fair or proper accusation of JA. Do you agree?

Fair question. I think the judiciary has to look at the intent of the drafters as to what they considered to be "arms". I think it's reasonable for the judiciary to acknowledge some progression as to the type of arms now available, so as to permit weapons other than black powder rifles. I don't think that progression would include nuclear warheads. I don't think that even the most stringent 2nd Amendment supporter would consider nuclear warheads as arms as the drafters intended the word.

 

So to answer your question, it would not be safe to assume that I feel it is unconstitutional to prohibit private ownership of small nuclear bombs.

 

There is an old story, I don't vouch for its truthfulness, that says that Winston Churchill once asked a women if she would sleep with him for a million pounds. She blushed and said "I suppose so." He then asked her if she would sleep with him for one pound. She gave an indignant reply of "of course not!! What kind of woman do you think I am?" Churchill is said to have replied, "Madam, we have established what kind of woman you are. We are haggling over the price." It seems that once you allow that the courts can use their judgement to decide what is a reasonable update to the framers intent (and I think that is a proper thing to do) you have to allow for where that judgement takes you. In the case of "arms" it would seem that the kind of reasonable restrictions necessary to protect society is always going to be a judement call. Judgement calls would fall into the lap of the legislative branch.

Some folks do, no doubt, unfairly and improperly throw the term about when a decision is made with which they disagree, but that doesn't necessarily mean that there is no fair or proper accusation of JA. Do you agree?

 

Absolutely, I agree.