pageok
pageok
pageok
Jonathan Rauch on the Future "Conservative" Supreme Court:

A characteristically thoughtful and interesting piece (excluding from the consideration, of course, the small parts that quote yours truly).

SimonD (mail):
I find it very hard to take Rauch seriously (even though many of the points he makes are pretty valid, if not to say largely borrowed from Mark Tushnet's recent book) when he repeats - twice, no less - the claim that Kelo was not unconscionable judicial activism. Jon writes:
There it went again, that activist Court, trampling on the democratic process, legislating from the bench. Except that it had done no such thing. In the New London case, the Court pointedly deferred to the political branches of government, ruling that it had no business second-guessing Connecticut's elected officials. Conservative property-rights advocates were upset, it appeared, because the Court did not legislate from the bench.
What bothered me about Kelo - and I've not been shy to say as much (see various comments here and here) - is fairly similar to what bothered me about the ludicrous New York Times suggestion (see comments here) that it is the Court's conservative block that are the "judicial activists".

Jon asks us to by into the idea that all the court did was defer to the legislature; implicitly, that makes the decision "reasonable" rather than "activist". This again falsely conflates "action" with "activism"; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything else if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required.

I imagine Jon would be less latitudinarian about the establishment clause than he is about the public use clause. The only point, it seems to me, in placing a right in the constitution is to take it off the democratic stage. Isn't that why liberals want Roe upheld, after all? Because something that's in the Constitution is off the democratic stage? (Obviously these are not entirely comparable situations, insofar as the public use clause actually exists in the constitution, while the right to an abortion doesn't). Thus, it seems to me that the whole point of the public use clause in the Constitution has been short-circuited by Kelo; if the court places back into the normal political arena the question of whether or not to invade a right, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that precise reason, the case was wrongly decided.

It could reasonably suggested that, although the taking itself is not for public use, the second-degree earnings anticipated to accrue from that taking may be put to public use. But even if we buy into that, what limit would it place on the excercise of emminent domain? What is the protection which shows Justice Thomas to be wrong in saying that "if such 'economic development' takings are for a 'public use', any taking is, and the Court has erased the Public Use Clause from our Constitution"? Again - if the court robs a clause of all meaningful (or, intelligible - cf. Blakely) content, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that reason too, the case was wrongly decided.

I respectfully dissent.
7.29.2005 6:43pm
B E S:
Rauch has a skewed definition of activism. Activism does not mean going against the will of the legislature. Activism is not faithfully interpreting the Constitution, but instead allowing your own views to detemine your decision. In due process cases, this means going against the legislature and writing new rights into the Constitution - activism.

BUT, this also means ridiculously interpreting the commerce clause, or in this case the takings clause to mean things they so clearly do not mean to allow strict government control - activism.

The Constitution does not strip naked the federal government or state governments. It gives them certain powers and forbids them from using others. It is not activism to rule against the legislature if its law is at odds with the Constitution. It is activism NOT to.

It seems to me that this has been the new call of liberals who love activism in the due process realm. Instead of coming up with a rational explanation for their support of activism, they (weakly) attempt to find examples of conservative activism. This Johnny jumped off the Empire State Building political logic never impressed me and does not do so in this area either.

Moreover, the attempt to equate strict interpretations of the Constitution that result in overturning federal or state legislation in the commerce clause area with the fanciful creation of new Constitutional rights in the due process arena is just plain stupid.

Bottom line: overturning legislation does NOT always equal activism. Rulings at odds with the original interpretation of the Constitution equals activism.
7.29.2005 6:44pm
PAC:
In a 1997 decision (affirming a 1990 holding), the Court said no, with four conservatives voting against the religious exception, and two, Breyer and O'Connor, voting for it.

I'd like to be charitable and assume this part of the article was a misprint , but I don't see how it could have been.
7.29.2005 7:41pm
TD019:
I thought this was a very solid piece. BES, I'm glad to know that you have a working definition of activism. The problem with your argument, I think, is that the term "judicial activism" as it is used in public arguments is simply meaningless.

My question for you, BES, is this: is a court decision interpreting the Constitution "activist" in nature simply because in your view, it goes against the original activism? What your definition boils down to, I think, is that if you disagree, it's activism. What about cases where reasonable people might differ as to the original interpretation?
7.29.2005 7:56pm
Jeremy Pierce (mail) (www):
I caught the Breyer thing too. It was odd seeing O'Connor and Kennedy being treated as solid conservatives who occasionally vote with the liberals, but that sort of cleared up why he would think such a thing. If Breyer's a conservative, then Kennedy and O'Connor clearly are solid conservatives. Of course, that would make Ginsburg, Souter, and Stevens right-leaning moderates.
7.29.2005 8:20pm
B E S:
To TD019

The problem with your argument, I think, is that the term "judicial activism" as it is used in public arguments is simply meaningless.


I agree with this. I think it has become meaningless becuase liberals have hijacked in a purposeful effort to render it meaningless. My other favorite liberal definition of activism is the one that states overturning improperly decided Supreme Court cases is activism. I stand by my bolded definition of activism in my original post.



original activism?


What's "original activism?"


What about cases where reasonable people might differ as to the original interpretation?


There are some cases where a TRUE dispute over orignal intent arises, and in those cases a disputed decision coming out either way IMHO would not be "activst." But more often than not "reasonable" people only differ in their desired result. Though reasonable people may differ on whether local governments ought to be able to take private property and give it private developers, NO REASONABLE person could believe, that an original reading of the Constitution could mean this.

My defintion of activism in solid--simplistic, yet solid. There are definitely times when, even if a judge is faithfully attempting to apply the original intent of the Constitution, there will be disputes as to its meaning. This is true with the Constitution just as it is with any law. But to equate these situations with the poor jurisprudence of Lochner, Roe, Kelo, et. al is intellectually dishonest.

Unlike most liberals I am able to recognize that bad laws are not always unconstitutional. They are just bad. There are many situations where I feel the Constitution has been correctly interpreted, but I don't like the outcome. And situations where I feel the Constitution has been incorrectly interpreted, but I do like the outcome. In both of these situations, due to my preference of Constitutional democracy over Supreme Court oligarchy, I prefer the correct interpretation of the Constitution, even if the outcome does not suit my personal preferences. I am able to separate bad laws from those that are unconstitutional. Are you?
7.29.2005 9:15pm
SimonD (mail):
TD019:
What your definition boils down to, I think, is that if you disagree, it's activism.
This is a self-fulfilling prophecy. If a person's opposed to judicial activism, then isn't it rather unlikely that they'll be able to find a case which had an activist result which they agreed with?


Jeremy:
Of course, that would make Ginsburg, Souter, and Stevens right-leaning moderates.
Don't you read TIME magazine, my friend? There are no liberals on the Supreme Court. TIME's SCOTUS special recently depicted a photo of the court, labelling Scalia a "staunch conservative" (bet staunch conservatives loved his opinion in BMW v. Gore), Thomas a "staunch conservative" (bet staunch conservatives loved his opinion in Raich), and Breyer, Souter and Ginsberg as "moderates". I suppose it could be considered a "point of view", but as Scott Adams put it a few years back, "when did ignorance become a point of view"?

What worries - and yet, amuses - me, is that I think liberals honestly think that Breyer and Ginsberg were necessary compromises. So when they demand a compromise candidate, what they mean is, a compromise between the inane wing of the Democratic party, and the insane wing of the Democratic party. Or, in other words, Justice John Kerry.
7.29.2005 9:22pm
SimonD (mail):
I think it has become meaningless becuase liberals have hijacked in a purposeful effort to render it meaningless. My other favorite liberal definition of activism is the one that states overturning improperly decided Supreme Court cases is activism.
See comments from Senator Biden here.

Am I the only one who feels not so much anger or frustration at how patently ludicrous Biden's comments are, but really, just overwhelmingly tired, and baffled at trying to read nonsense like this man — who serves in the Senate, for crying out loud! Whither the "greatest deliberative body in the world" if this is one of the deliberators! — is spouting?
7.29.2005 9:28pm
WHerndon (mail):
I find most of the commentary here beside the point. The purpose of Rauch's article was not define judicial activism -- a definition with which I also have problems. It was to explain why no great revisionism is likely on a court with more Republican selections.

And the reason is because conservatives are split into at least three camps (and that's not even including libertarians such as Glen Reynolds.) I found his article compelling. Fair, informative, insightful, explanatory. The sort of journalism rarely to be found these days.

Sure, there were a few mistakes. I am sure Rauch knows that Breyer is not a conservative. (Though he is the most 'conservative' of the 'lberal' justices). Overall, however, I thoroughly enjoyed the article. Beats almost anything I've seen in the big dailies.
7.29.2005 10:33pm
cfw (mail):

Interesting article, as far as it goes. It looks at risks based on exisiting USSCT precedent. Might also wnt to consider risk based on prominent cases that may (or likely will) bubble up soon to the USSCT.


I would refer to the Hamdan case, joined in by Roberts. In Hamdan, broadly speaking, the Circuit says the Pres need not use court martial due process procedures to sort out detainees who are (or are not) properly classified as unlawful combatants. How does lack of process rights here compare to what Justices Vinson and Jackson proided to arms maker Krupp and his ilk after WWII? Krupp had 38 German and US lawyers. He had 8 months of trial. 3 state supreme court justices issued a 60,000 word opinion. (See Manchester, Arms of Krupp.) Military tribunals then were preceded by extesnive depositions. Why is it so much different now? Are we under-processing the modern alleged war criminals because of some prejudice? (Bush prejudice against lawyers perhaps?) Are we being cheap (penny wise and pound foolish)? Is Bush just trying to avoid a Willie Horton and not really interested in hanging anyone? Was Jackson simply in error after WWII in giving so many process rights? What is the risk of a looking back in extreme regret in 50 years if Hamdan is adopted as the law of the land by the USSCT? How is it more exemplary than the Dred Scott case, where the USSCT justified denying rights to blacks because they are not people? Are we using the same logical fallacy here, saying we need not treat Hamdan as a person because he is foreign? How is the Hamdan opinion better than Korematsu, which approved detainment of Japanese/Americans without due process? Would R need to recuse himself if Hamdan went to the USSCT? In Hamdan, did R approve a clearly too narrow and "deferential to exec" approach? What does that indicate about risks of promoting R?
7.31.2005 11:36am