Activist Judges
I just watched Robert Gibbs go through an incredibly frustrating debate over whether or not the criteria President Obama has laid out for judges means he’s going to appoint some of the dread “activist judges” to the Supreme Court.
I wish progressives wouldn’t be so defensive about this. The idea of an “activist judge” is something that was cooked up by white supremacists in the 1950s and 60s who didn’t like judges bossing people around and telling them they had to let black people vote and go to school. To me, frankly, it’s a bit shocking that modern-day conservatives are still so eager to associate themselves with the legacy of the racist backlash of a couple of generations ago.
The term is nonsensical on its face. Is the idea that judges should be passive? Just not issue rulings on constitutional questions? That’s absurd. Is the idea that judges should never strike down laws as unconstitutional? For one thing, conservative judges do it all the time. But more importantly, why would we have a system of judicial review if the ideal of judging was to never strike a law down? It’s a nonsense debate. As no less a figure than William Rehnquist explained in a memo written when he was in the Nixon justice department “A judge who is a ’strict constructionist’ in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s ‘broad constructionist’ reading of the constitution.” I think it’s fair to have a real debate about this, but let’s not BS around about “activists” and “strict construction.”
77 Responses to “Activist Judges”
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May 1st, 2009 at 3:09 pm
you’re asking for a rational debate with people who think Obama is a socialist Muslim Nazi foreigner who engineered the swine flu in order to push through his socialized health plan ?
May 1st, 2009 at 3:18 pm
Right on, Matt. Let’s not forget that Earl Warren was a Republican appointment. Also, Warren was a former Governor and Attorney General of the State of California. He had a large hand in the internment of Japanese Americans. If anyone knew about abuse of power and how fragile personal liberties are in the face of mob rule, it was Justice Warren. These people are still pissed that they can’t unleash attack dogs on African Americans and shoot them with water cannons and hang them from the neck until dead without a trial.
Whenever I’m listening to some yuts pine for the good old pre-Warren days, I like to remind them of the Apartheid system we had in this country. Then I like to point out that from 1600s to early 1960s we had prayer in schools, yet we had slavery, apartheid, etc. But that within a year or two of the abolishment of prayer in schools, we had the Civil Rights Act and the end of the Civil War. They never like that linkage.
May 1st, 2009 at 3:21 pm
The good news is that the public doesn’t understand this “activist judge” debate, which is because it doesn’t care. Just tell them you will do your best to interpret the law accurately and apply it the same way to everyone fairly, and they will be fine.
May 1st, 2009 at 3:23 pm
Definition of an activist judge: somebody with whose ruling I disagree.
May 1st, 2009 at 3:25 pm
Activist judges? You mean like in Iowa?
May 1st, 2009 at 3:25 pm
While the activist judge accusations began in the fifties with desegregation, the real spread of the activist judge argument came in the 70s with court-ordered bussing. Forced bussing was very unpopular and affected northern states as well as southern ones. As an aside, bussing probably contributed to much of the suburban sprawl Matt complains about, as middle-class white families fled urban school systems with large numbers of minority students.
May 1st, 2009 at 3:25 pm
Activism is something required to force the conservative agenda up to the Supreme Court.
One reason a case makes its way to the top is because two circuits have come do different rulings in an area of law. So, one way to force a previously settled issue up is to appoint conservative Appeals court judges to a few circuits and allow more liberal judges to get appointed to others.
But where is the actual activism in the Supreme Court? Maybe it is doing something other than what Obama just said about who he is looking for: someone who pays more attention to the raw text of the constitution while forgetting that it was written for and by men.
May 1st, 2009 at 3:26 pm
I think you miss the point that conservatives are trying to make.
I think the modern sense of the word “activist judge” means one who favors balancing tests over bright line rules. Balancing tests allow judges to consider notions of equality, pragmatism etc. into their rulings where as bright line rules can often (callously) leave the door closed.
Granted, it’s probably just a more sophisticated rehash of the same debate from the civil rights era that you mention, but to avoid talking past each other, its probably important to understand what conservative legal scholars with half a brain oppose.
May 1st, 2009 at 3:27 pm
Tim H. is right, though. It’s about “legislating from the bench” more than it is about judicial review.
May 1st, 2009 at 3:30 pm
Tim: except when it comes to stopping a recount of votes in a Presidential election, then all notions of Federalism go out the window and any whim and fancy could be applied to the analysis.
May 1st, 2009 at 3:33 pm
Except when it’s not – for example, the activist judges who didn’t overturn McCain-Feingold, or who uphold gun laws.
There is really no consistent principle behind conservatives’ complaints about activist judges, other than that they are judges who don’t rule as movement conservatives want them too.
May 1st, 2009 at 3:34 pm
Tim H,
The problem is that conservative legal theorists will advocate against specific bright line rules as soon as they find themselves on the wrong side of them.
What is really going on is that people are accusing each other of reasoning backwards from their desired conclusions. Which in fact happens a lot, but it happens less if you have ideologically and politically mixed panels/courts–it turns out the other judges on your panel/court will tend to keep you at least a little more intellectually honest.
So if you are in fact serious about this issue, you should be advocating for such a mix. But there aren’t a lot of people willing to argue for anything but total victory, meaning they want panels/courts entirely packed with judges they consider ideologically and politically compatible.
May 1st, 2009 at 3:36 pm
Matthew @11:26 am: “I’m not really sure how I became a “usual suspect” in this regard [calling people racists]—maybe [Byron] York has some long list of people I’ve been calling racists”
Matthew @3:04 pm: “To me, frankly, it’s a bit shocking that modern-day conservatives are still so eager to associate themselves with the legacy of the racist backlash of a couple of generations ago.”
Point – Byron York!
As I said on that post, calling people racists is obviously one of Matthew’s favorite passtimes – he does it with unbelievablely high frequency.
May 1st, 2009 at 3:38 pm
Scalia is the most activist justice currently on the court, considering all of the precedents he would gladly overturn if he could someone besides Thomas to agree with him.
May 1st, 2009 at 3:45 pm
Al,
Please provide a quote where Matt called someone a racist.
Because you haven’t.
May 1st, 2009 at 3:47 pm
This, of course, is what conservative wailing about anti-racism – let’s call it “anti-anti-racism” – is all about. Cries about “activist judges” have an ugly history. Conservatives don’t want to talk about that, so they try to stigmatize anyone who points that history out – in this case, by pretending to have been accused of racism.
May 1st, 2009 at 3:48 pm
Please provide a quote where Matt called someone a racist.
The second quote in my post above obviously calls modern-day conservatives racists. One would have to be a hack to believe it doesn’t.
May 1st, 2009 at 3:49 pm
@13: the thing is, Al, the people Matt is calling racist are “white supremacists in the 1950s and 60s.” So I kind of don’t get your point.
Is your position that we should never acknowledge racism?
When *is* it appropriate to acknowledge racism?
May 1st, 2009 at 3:49 pm
Yeah, Al, did you not realize that we were actually going to read the quote you posted? Because those of us with actual reading comprehension skills realize he’s not calling these conservatives racists. I mean, you prove his point about the right every time you post.
May 1st, 2009 at 3:51 pm
While I agree with you in general, the debate isn’t as simple as you have portrayed it. Activist judges interpret the Constitution in light of contemporary beliefs and values- an activist judge isn’t simply someone who strikes down a law as unconstitutional.
May 1st, 2009 at 3:51 pm
Sandra Day said an activist judge is one who wakes up in the morning and goes to work.
That said, saying it’s a nonsensical debate is too much. Have you spent any time with the substantive due process jurisprudence?
May 1st, 2009 at 3:52 pm
The second quote in my post above obviously calls modern-day conservatives racists. One would have to be a hack to believe it doesn’t.
Ok, let me break it down for you. Back in the 1950s, there were actual racists who called judges who legislated for racial equality “activist judges”. Matt, in that quote, finds it puzzling that modern-day conservatives would rail against “activist judges”, because it brings to mind what that term was originally used to mean. And it would seem odd for conservatives, who presumably are not racists, to use a term originally used in a racist context.
Does that make any sense whatsoever to you?
May 1st, 2009 at 3:53 pm
@17: no, he’s saying modern conservatives “are eager to associate themselves with the legacy of the racist backlash of a couple of generations ago.”
The legacy being, not racist itself, but this animus against “activist judges.” If you want to attack the argument, the fair attack would be to say that it’s a weak argument about appearances rather than about substance. Matt’s not saying that animus against “activist judges” actually = racism. He’s saying that it’s connected, in an unseemly way, to the legacy of a racist movement.
May 1st, 2009 at 3:53 pm
The GOP will lose further political points in the fight for Souter’s replacement if they insist on putting forth their usual arguments. Obama will get another teaching moment to discredit conservative principles. I would not expect the GOP to be relishing this fight at this time considering their weak, weak state. That goes double for the Federalist Society who are already scrambling to keep the Bush Administration out of the dock for torture. They have truly fallen and they can’t get up.
May 1st, 2009 at 3:54 pm
The problem from progressive points of view is that judges aren’t really empowered to generally “do justice”. They are empowered to “enforce the Constitution”.
So if a law violates the Constitution and they choose not to strike it down because they believe themselves to be doing justice (leaving McCain-Feingold intact because the 1st Amendment clearly is all about protecting obscene speech but definitely NOT about protecting political speech) they are being activist judges.
If a law does not violate the Constitution and they choose to strike it down because they believe themselves to be doing justice (Marshall and his silly “the Constitution forbids the death penalty entirely despite the fact that it specifically references the procedure for dealing with capital crimes” opinions) they are being activist judges.
Now admittedly the tricky part is agreeing on when they are really doing the above (though both of the examples I’ve cited are pretty ugly). But that doesn’t mean that the idea ‘activist judge’ is somehow useless.
May 1st, 2009 at 3:55 pm
Matt, in that quote, finds it puzzling that modern-day conservatives would rail against “activist judges”, because it brings to mind what that term was originally used to mean. And it would seem odd for conservatives, who presumably are not racists, to use a term originally used in a racist context.
Why is it “odd” to use a term that was associated with racists back in the day, if the people who are using it now are not racists? There is no reason. Therefore, the only reason Matthew would find it “odd” is to say that modern-day conservatives are, in fact, racists for using a term that is associated with that history.
May 1st, 2009 at 3:55 pm
Joe from Lowell–of course they’re not consistent. But when they speak of “judicial activism” that’s what they’re talking about. In their minds there most definitely is a difference between “because the constitution says so or doesn’t” and “because I like abortions and gay people.” Which again doesn’t mean they can’t rationalize favorable decisions that don’t meet their own standards.
And remember, the Constitutions “says so” when they want it to. So it’s a very nice standard to have.
May 1st, 2009 at 3:55 pm
Also interesting that Matt can make the racist slur without somehow mentioning the main rallying focus on ‘activist judges’ for the past 30 years–Roe v. Wade.
May 1st, 2009 at 3:55 pm
No, it doesn’t. It says they are associating themselves with an argument used by racists. I’m sorry, your hairshirt is a very poor fit.
I’ll ask you again – please provide a quote from Matt in which he calls modern-day conservatives racist. Because you haven’t.
May 1st, 2009 at 3:58 pm
For the same reason it would be odd to use a swastika on your party’s letterhead, if you are not in fact a racist – BECAUSE IT’S ASSOCIATED WITH RACISTS.
This is one of those really obvious points that you have to work hard to pretend not to understand. Conservatives do seem to spend a lot of time doing that, though.
May 1st, 2009 at 3:58 pm
“Matt, in that quote, finds it puzzling that modern-day conservatives would rail against “activist judges”, because it brings to mind what that term was originally used to mean. And it would seem odd for conservatives, who presumably are not racists, to use a term originally used in a racist context.”
Is that where it becomes appropriate to mention that NARAL founder Sanger was a believer in racist eugenics and that part of the reason she was so gung-ho on abortions was so that black people would quit breeding so much? And how it is odd for a progressive, who presumably is not racist, to associate with an organization originally linked to such a racist context?
Or would that be totally unfair?
May 1st, 2009 at 3:59 pm
It’s interesting to note that the social conservative movements of today, 30 years ago, and 50 years ago use the same language?
Why, yes, it is, though probably not for the reason you thought.
May 1st, 2009 at 4:01 pm
As an aside, bussing probably contributed to much of the suburban sprawl Matt complains about, as middle-class white families fled urban school systems with large numbers of minority students.
Only if somebody had a time machine. Suburban sprawl was a well established pattern for at least a couple of decades before busing kicked in as an issue in the early ’70’s. It did, however, greatly accelerate the disintegration of the New Deal coalition and the rise of the Reagan ere we’re tyring to pick up after today.
May 1st, 2009 at 4:01 pm
Why is it “odd” to use a term that was associated with racists back in the day, if the people who are using it now are not racists?
Ok, say you support civil unions, but not gay marriage. If you defended that stance by calling civil unions “separate but equal”, that would certainly be an odd choice of words. You might want to pick a different phrase because that one has a history of being associated with racists. I wouldn’t immediately think anyone using that is a racist or bigot; my first reaction would be that they’re just dumb. Which is the same reaction I have when I hear someone go on about activist judges.
Therefore, the only reason Matthew would find it “odd” is to say that modern-day conservatives are, in fact, racists for using a term that is associated with that history.
You are no position to tell Matt the reason why he typed what he did, nor to imply meaning between the lines that he didn’t state. If you want to conclude Matt meant something that the rest of us don’t think he meant, that’s fine. But it’s certainly not the only reason, and in fact not a very likely one.
May 1st, 2009 at 4:01 pm
matt’s exactly right.
and the defensiveness that he talks about is just another example of the basic wimpiness of dems and progressives who tend to be simply afraid to state their position and back it up with arguments.
the response is simple nowadays. anytime any journalist or rightwinger even lets the words, “activist judges” slip out of their mouths, i would bring up bush v gore.
end of discussion.
but then, this is only as amazing as the fact that dems are afraid to actually have a debate on torture and have allowed themselves to be tied into knots about an issue that they should beat republicans over the head with.
May 1st, 2009 at 4:01 pm
Now admittedly the tricky part is agreeing on when they are really doing the above (though both of the examples I’ve cited are pretty ugly). But that doesn’t mean that the idea ‘activist judge’ is somehow useless.
Again, by your definitions “activist judge” basically just means a judge who reasons backwards from a desired conclusion.
Now on the one hand, I agree this isn’t a “useless” concept, because unfortunately judges do that all the time. But that is also the sense in which it isn’t very useFULL either–judges do this all the time! Liberal judges, conservatives judges, Democratic judges, Republicans judges, living-constitutionalists, originalists, and on and on . . . judges in all these categories are often guilty of this charge.
So in the end, all you get is a lot of fingerpointing, and to sort it out you have to get down into each specific issue and figure out what you think is really the best argument. And by the way, good luck doing that without your own biases showing up eventually, in at least some cases.
May 1st, 2009 at 4:02 pm
Sebastian I don’t understand where you’re going with that. You’re saying it’s inconsistent by that standard for liberals to use the word “abortion”?
May 1st, 2009 at 4:02 pm
It would be totally unfair, since contemporary supporters of abortion rights have explicitly renounced those old, racist ideas and hold no truck with Singer, while modern “social conservatives” continue to do things like laud Jesse Helms and Strom Thurmond, and insist that criticism of them is unwarranted.
May 1st, 2009 at 4:03 pm
The so-called activist judges were often undoing activism from the right. The 14th Amendment says nothing about “separate but equal,” but that’s what the Plessy court read into it. Enforce the 14th Amendment from the start, don’t twist it’s meaning and there’s no need for the Brown vs. Board of Ed decision.
Likewise the Commerce Clause cases. Prior to the New Deal, the right-wing activist courts held that the Commerce Clause didn’t apply to interstate commerce that involved mining, manufacturing or agriculture. Search the constitution for that exception, you won’t find it. The right didn’t and won’t have any issue with decisions it agrees with, such as Bush v. Gore. Attacking “judicial activism” is a phony (although long-standing) argument.
May 1st, 2009 at 4:05 pm
All of the following things are true:
- The GOP line on “activist judges” is a tired old canard
- It’s essentially hypocritical, as conservative judges also seek to overturn precedents they don’t like
- This attack is meaningless to most people under age 30
- Obama will be able to nominate almost anyone he wants and get confirmation from the Senate
BUT
- Some of the judicial decisions handed down by liberal jurists in the 1970s were extraordinarily unpopular with many people who were not racists, and it’s kinda shitty of you to presume otherwise.
It’s probably for the best if Obama appoints progressive judges who have learned from some of their mistakes. Court-ordered busing, in particular, was a classic case of paving the road to hell with good intentions. There are plenty of non-racist reasons to have your children’s educational opportunities dictated from Washington. And the initial backlash kicked many school systems into a death spiral that eventually drove out non-racist whites and middle class blacks. The outcomes did little to advance equality, but did a great deal to discredit liberalism in the eyes of an entire generation.
May 1st, 2009 at 4:05 pm
Is that where it becomes appropriate to mention that NARAL founder Sanger was a believer in racist eugenics and that part of the reason she was so gung-ho on abortions was so that black people would quit breeding so much? And how it is odd for a progressive, who presumably is not racist, to associate with an organization originally linked to such a racist context?
Or would that be totally unfair?
I would respond by saying that if that organization still believed in those principles, yes, that would be quite odd to associate with. But Robert Byrd used to be a KKK member. I see no reason why the Democratic party should be ashamed to associate with him now, a very long time after he realized the error of his ways and changed his beliefs.
But likewise, “activist judges” doesn’t really mean the same thing it used to. It’s mostly referred to as any judge Republicans don’t like, not anything racist. So I don’t find the term offensive, just silly. And Matt was just pointing out its historical use.
May 1st, 2009 at 4:05 pm
I never saw anything in the Constitution about treating “corporations” as “persons” with “rights” – yet somehow I never ever ever see a conservative “activist judges” hack ever seem to get upset about that
May 1st, 2009 at 4:06 pm
DanG ah but then you’re messing with stare decisis.
May 1st, 2009 at 4:06 pm
Edit: There are plenty of non-racist reasons to resent having your children’s educational opportunities dictated from Washington.
May 1st, 2009 at 4:07 pm
You do know that Hillary just ‘lauded’ Sanger recently, don’t you?
May 1st, 2009 at 4:10 pm
You do know that Hillary just ‘lauded’ Sanger recently, don’t you?
I don’t generally read conservative blogs, so no, I didn’t. I’m quite sure if she did it was her work with women she lauded and not her belief in eugenics. We can laud the founding fathers even though they kept slaves.
I also find the whole “gotcha” game people like you play terribly boring. As though the correct response to one side doing something bad is to point out someone else doing something kinda related.
May 1st, 2009 at 4:11 pm
LaFollette Progressive,
Where did Matt say that opposition to Roe vs. Wade was racist?
May 1st, 2009 at 4:14 pm
Is that where it becomes appropriate to mention that NARAL founder Sanger was a believer in racist eugenics and that part of the reason she was so gung-ho on abortions was so that black people would quit breeding so much? And how it is odd for a progressive, who presumably is not racist, to associate with an organization originally linked to such a racist context?
Actually, Sanger was the founder of a predecessor organization to Planned Parenthood, not NARAL. It’s fair (or at least accurate) to point out the history, but it’s also clear PP’s current work doesn’t reflect Sanger’s views in this area. The analogy to the leaders of a political movement whose motives minorities already consider suspect is imperfect.
May 1st, 2009 at 4:15 pm
Where did Matt say that opposition to Roe vs. Wade was racist?
He obviously didn’t. I was thinking specifically of some of the later civil rights decisions when I wrote that.
But I would say that by ignoring Roe v. Wade and suggesting that complaints about “activist judges” are inherently racist, he isn’t making a very strong argument.
May 1st, 2009 at 4:15 pm
UNLEASH ME!
May 1st, 2009 at 4:16 pm
As though the correct response to one side doing something bad is to point out someone else doing something kinda related.
You’re right, it is kind of boring, but it does help point out the hypocrisy of someone like Joe who said:
while modern “social conservatives” continue to do things like laud Jesse Helms and Strom Thurmond, and insist that criticism of them is unwarranted.
May 1st, 2009 at 4:19 pm
You’re right, it is kind of boring, but it does help point out the hypocrisy of someone like Joe who said:
while modern “social conservatives” continue to do things like laud Jesse Helms and Strom Thurmond, and insist that criticism of them is unwarranted.
Ok, I think you’re missing a pretty big part of that line. namely the “criticism of them is unwarranted” part. See, criticism of Sanger is perfectly warranted, because she had some bad traits. I think all progressives and Hillary would agree with that. You can laud someone’s achievements and criticize their flaws at the same time.
What Joe said was that modern social conservatives insist that criticism of overtly racist former politicians is unwarranted. That’s a completely different situation, and one that in no way makes Joe’s statement hypocritical.
May 1st, 2009 at 4:21 pm
Wasn’t Nixon the one who popularized the notion of “strict constructionism” during the 1968 presidential campaign? If I’m right about that, then I think conservative frustration with “activist judging” at that time presumably arose from a number of areas of Warren Court activity. Not just the desegregation cases, but also the court’s reformation of criminal procedure and then maybe also Griswold. So, I would disagree that the desegregation cases were the primary motivator. But I haven’t researched it.
It’s true that Roe came to be the symbol of “judicial activism” after 1973 for right-wing demagogues, so I’d further agree that the racial component very much took a back seat after that, if it’s even existed at all.
Finally, of course it’s true that both sides of the ideological divide could lob accusations of “judicial activism” at each other all day long if they wanted to. The Rehnquist Court attempted a dramatic revision of the federal structure in the 1980s and 90s (which conservatives undoubtedly consider merely to have been restoring the true constitutional order, but that can be argued). Unfortunately, I think the GOP has given the term some resonance with the public after 30-plus years of hammering it into people’s heads, so it undoubtedly will be trotted out and blared ad nauseam into our ears again.
May 1st, 2009 at 4:28 pm
In a little-noticed incident, Secretary of State Hillary Clinton recently announced that she is “really in awe” of Sanger. “The 20th-century reproductive-rights movement, really embodied in the life and leadership of Margaret Sanger, was one of the most transformational in the entire history of the human race,” Clinton declaimed upon receiving an award from the organization that Sanger founded, Planned Parenthood.
Since you don’t read right wing blogs.
modern social conservatives insist that criticism of overtly racist former politicians is unwarranted
Maybe you could point these modern social conservatives out for me. Because I haven’t heard any of them justify past racist views.
May 1st, 2009 at 4:31 pm
One thing this discussion has helped me see:
An enormous amount of bad faith on the right is linked to a basic unwillingness to admit, forthrightly, that conservatives were wrong in the 50s and 60s about civil rights.
They’ll change the subject, accuse you of reverse racism, squirm and twist like cut earthworms — they’ll do everything under the sun but confront that issue.
May 1st, 2009 at 4:34 pm
“Judicial Activism” can be dated back to at least around 1300, when royal judges interpreted the Statute of Gloucester (1278) to give the royal courts exclusive jurisdiction for cases involving at least 40 shillings, when the statutory wording actually prohibited the royal courts from hearing any matter involving less than 40 shillings (i.e., royal courts were concurrent with the baronial courts for matters involving at least 40 shillings).
Given that most of the Framers were lawyers trained in the common law tradition (reading Coke and toting Blackstone in their saddlebags), they intended and expected the federal courts to exercise the powers of common law courts, including the power to make law when presented with a case or controversy.
An example of “judicial activism” loved by right-wingers is the “regulatory takings” doctrine. The deploring of “judicial activism” is another instance of “I’m frugal, you’re cheap” type of criticism.
May 1st, 2009 at 4:39 pm
For the same reason it would be odd to use a swastika on your party’s letterhead, if you are not in fact a racist – BECAUSE IT’S ASSOCIATED WITH RACISTS.
Exactly – meaning that if you “use a swastika on your party’s letterhead” (or otherwise associate with racists), you are most likely a racist! How hard is this to understand? You are working awfully hard to raise a non-existent case that Matthew didn’t call conservatives racists in this post. As I said above, anybody who is not a hack realizes that Matthew was, once again, as usual, accusing people of being racists.
May 1st, 2009 at 5:04 pm
Al, what’s the point? All the liberals here disagree with your conclusion. We feel you’re making an unwarranted leap in logic that Matt did not imply. Your making that leap over and over in post after post isn’t convincing anyone that that’s actually what Matt meant.
And more importantly, why the hell are you reading the blog if you think Matt’s such a hack?
May 1st, 2009 at 5:21 pm
And more importantly, why the hell are you reading the blog if you think Matt’s such a hack?
Matthew is a hack less often than almost any other left-wing blogger. Plus, he’s got occasional basketblogging.
May 1st, 2009 at 6:55 pm
Thank you, Adam.
What Al is doing is trying to divert every discussion about an issue touching on race into a melodrama about who called whom a name.
Anybody see Matthew calling anyone a racist? Accuse anyone of harboring racial prejudice? Supporting segregation? Not shaking black people’s hands? Belonging to the Klan? Voting against letting black people join the country club?
Of course not. He raised an issue about a certain line of judicial thought having an ugly racial background – sort of like George W. Bush did when he analogized Roe v. Wade to Plessy vs. Fergusan. I don’t recall any “boo-hoo, you called me a racist” wailing emanating from either Democrats or Republicans about that; the idea that the two cased were similar was debated on its merits.
Perhaps that’s because liberals are willing to discuss and debate these issues, while conservatives seem interested only in making them go away by making anyone who dares raise them feel bad. Personally, I think it’s a combination of a guilty conscience and a complete inability to contend with issues that have a racial dimension without swallowing their foot up to the ankle.
May 1st, 2009 at 10:03 pm
[...] 1, 2009 at 10:04 pm (Debunking, Outrage) (Judicial Activism, Matthew Yglesias) Matt Yglesias lamely attempts to tie conservatives to white supremacists: I wish progressives wouldn’t be so defensive about [...]
May 1st, 2009 at 10:07 pm
[...] 1, 2009 at 10:04 pm (Debunking, Outrage) (Judicial Activism, Matthew Yglesias) Matt Yglesias lamely attempts to tie conservatives to white supremacists: I wish progressives wouldn’t be so defensive about [...]
May 2nd, 2009 at 2:16 am
I need help. Can someone please define what a strict constructionist is? Considering the fact that the founders couldn’t agree upon what parts of the Constitution were supposed to mean and do (see Federalist v. Anti-federalist papers), whose Constitution are they strictly construing?
May 2nd, 2009 at 5:25 am
You parade your ignorance, Matt, and shame yourself. The argument isn’t about whether striking down laws as unconstitutional is correct; but more about the tools of remedy, which branch prescribes their implementation, and the proper method for interpretation of the Constitution.
Indeed, jurists who you would label “conservative” like Thomas, and favors an originalist approach; and yet he is more willing to disregard to stare decisis and strike down large swaths of existing Supreme Court precedent as unconstitutional to reach the correct result. Quite differently, the justice Anthony Kennedy is less willing to articulate substantive legal theories from individual cases, and tends to make limited judgments in those cases that allude to his more incremental style. This is why he is considered so pivotal in the Ricci case and other controversies of affirmative action, because he takes measure of the particular facts at hand and can correspondingly come to different conclusions – he upheld a limited affirmative action argument in Grutter v. Bollinger and rejected a different argument in Parents Involved v. Seattle School District.
Dahlia Litwick wrote previously on a debate between Scalia and Breyer, two very polar members of the Court, where both of them agreed that “judicial activist” was a useless notion. Personally, as a libertarian with conservative leanings, indeed, I favor a rigorous activism where the Court is more willing to limit theories of government power and strikes down unconstitutional laws with prejudice. On the other hand, I wonder where your principled opposition to the creation of theory of the “unitary executive” originates that distinguishes that philosophy from say, the expansive reading by the Warren Court on the clause of “without due process”.
You used to be a lot better, Matt, but I think you’ve acquiesced to the notion you have to become a partisan hack to succeed in your career. When you first started an independent blog, it was genuinely interesting and fresh and helped me to understand the liberal approach to particular political question. When you moved to the Atlantic, you became slightly more partisan and hackish but not overly so. But since you’ve moved to Think Progress, this ghetto of little thinking, little argument, and much profanity, you’ve become so bad that you read like any other reactionary liberal. Your main goal here was to exhort your hordes to Truth by mindlessly repeating the mantra, “racism!…racism!…racism!”.
May 2nd, 2009 at 8:43 am
And yet another post reflecting Yglesias’s astonishment ignorance outside of a small range of pet-project subjects. Also, a classic exposition of progressive demagoguery and small-mindedness. The idea that concepts like “judicial activism” and “States’ rights” should **forever** be tarnished and discredited because they were utilized by the forces of white supremacy is ludicrous and betrays an enormity of bad faith on Yglesias’s part (sadly, it is not infrequent). This is putting aside the historically idiocy of the post, because the enormous currency that the term “judicial activism” holds on the current American right has more to do with the Court’s decision in Roe v. Wade than anything (a decision which was universally ridiculed at the time (and since) as an exemplar of shoddy legal reasoning and judicial overreaching).
May 2nd, 2009 at 8:47 am
Also, the point simply must be made that the #2 post by “Cal” is the most shameless employment of the correlation equals causation fallacy than I have seen on the internets in a long, long time.
May 2nd, 2009 at 8:52 am
No better example of “activist judges” on the Supreme Court exists than the five justices who decided Bush v. Gore.
But while the right is attacking activist judges, why isn’t it explicitly campaigning to abolish judicial review? In just those words?
I think the only thing holding them back from that is the hope of striking down some “liberal” laws, the way a previous Court killed the NRA.
May 2nd, 2009 at 10:53 am
Points well taken.
Roe v. Wade. Not very strong constitutional law.
That is the fuel the right uses to blame activist judges.
It wasn’t worth it. Legislature battles state by state was the way to go.
May 2nd, 2009 at 11:09 am
I don’t know why anyone would associate themselves with the National Review crowd. In the 1950s they were also notoriously anti-anti-German. But don’t let that “tarnish” them.
Ludicrous! Yeah, right. You can’t make this stuff up.
May 2nd, 2009 at 12:25 pm
You don’t much see the phrase “activist judge” before Brown v Board of Education, in the 50s, and Miranda, in the 60s, ruled that the protection of law extended to the point where the law was applied.
It was about that time that the real “activist judge” began to appear- the person who ignores the written form of the law and reaches into their own imagination to decide what the writers of the law would have written if they only knew- in other words, the “strict constructionist” who prefers daydreams to an actual close and literal reading of the legal text.
Abortion, for example, was legal for the first 150 years of our history. With almost no Catholics in the early population, why wouldn’t it be? But as the demographics and politics changed, the law was made up to prevent abortions. Then the advent of the machine-made condom made it ‘necessary’ to ban birth-control too. At the height of the insanity it was illegal to sell condoms in Chicago.
If these chuckleheads didn’t control vast publishing empires and pots of money, they’d be nowhere. As it is, they’ve ridden their old segregation-horse plumb near to death. Don’t think for a minute they aren’t looking around for some other “issue” where they can apply their tons of money to the body politic and get back in power again. They didn’t get where they are by playing well with others.
May 2nd, 2009 at 8:54 pm
We must never forget it is a constitution we are expounding here, dudes.
May 2nd, 2009 at 9:17 pm
[...] Yglesias: I wish progressives wouldn’t be so defensive about this. The idea of an “activist judge” is [...]
May 3rd, 2009 at 12:46 am
Re: #63, Brian L.:”I need help. Can someone please define what a strict constructionist is?”
Rhenquist, at the time President Nixon’s counsel, defined it thus: a strict constructionist favors the prosecution in criminal cases & the defendant in civil cases.
May 3rd, 2009 at 2:14 am
John: I know. But it gets them every time. They don’t know how to respond.
May 3rd, 2009 at 10:16 pm
[...] Matthew Yglesias calls bullshit on the idea of “activist judges”. [...]
May 4th, 2009 at 12:32 am
Strict constructionism means construing rights as strictly as possible when you don’t like the plaintiff, and construing them as broadly as possible when you do. (both look equally hyper-literalist to the untrained eye)
May 5th, 2009 at 6:18 pm
Big Swing and a miss. U.S. Supreme court justices are unelected and life appointed. The idea that they alone hold the power to declare any act of any level of government unconstitutional is an awesome power and comes with huge responsibility. It is not about being passive, it is about being accurate. Can you read anything at all in the constitution that would lead anyone to believe they thought judges would be ordering state legislatures on how to appropriate their congressional districts? Does it make sense to say a “punishment” is cruel and unusual for some people, but not for others, there is no mention of fairness, merely cruel and unusual. The death penalty is not cruel as the focus is on inflicting minimum pain, and it is not unusual as most states have it and some that don’t like Massachusetts do not have a death penalty because their Supreme Judicial Court struck it down despite the fact that the people voted to put it in the state constitution. This is also the first court to order the state to allow gay marriage, we know who runs things in Massachusetts, it isn’t the people, it is not the people’s elected representatives, it is not even the person the people have chosen to be the leader of the state, the governor. Instead it’s a gang of lawyers who answer to no one, do whatever they want. Rape had been a capital crime in many jurisdictions until the 70’s when the Supreme Court held rape of an adult could never warrant the death penalty. This offender was serving 3 or so life sentences, the court effectively said, short of murder, he can do anything he wants and need fear no consequences. Recently they said rape of a child can never warrant the death penalty, one of the most heinous crimes in our system, and never, no matter what the circumstances, it can never warrant death? Someone could rape and torture infants record it and sell it on video and he could never get more than life, no matter how many victims he abused. That a person could kill 25 people 1 hour prior to his 18th birthday and nothing more than life could be done, can you imagine telling that to George Washington, Abraham Lincoln, Teddy Roosevelt, John F. Kennedy? If you told them that the Supreme Court says a person is free to rape as many children as he can get his hands on and never receive more than a life sentence. Imagine telling them that the supreme court established a right to a clean getaway. That police officers can not shoot a fleeing suspect even if it is the only way to stop the suspect, who knows who the next victims will be but good thing he has a right to a clean getaway if he can outrun police or make the police stop chasing him because he poses a threat to public safety and they have to stop. What would Thomas Jefferson say if you told him the state was seizing Monticello (that’s where Jefferson lived, it’s also on the back of the nickle if you ever wondered what that was), but the supreme court says the state can take it away and put a casino or hotel there because it will generate more tax revenues than a home. Tell Chief Justice Taft (Also a US president), or Oliver Wendell Holmes that US supreme court rulings would contain rhetoric and cite cases from the courts of other countries? Or that the court decided to punish the public for police not following their procedures, Miranda is nowhere in the constitution, ignorance of the law has never been an excuse, and the court has now held even voluntary-freely given confessions, don’t with Miranda warnings are to be excluded from court based on the length of time between arrest and first appearance, a person could be arrested, confess and still get the confession tosses because he did not see a magistrate soon enough, so lets put a confessed criminal back out on the street on a technicality, isn’t that just wonderful? Lets see what a real Justice has to say:
U.S. Supreme Court DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
Mr. Justice CURTIS dissenting:
“To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible-because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.”