Ricci and “Activism”
This is hardly an original-to-me point, but you don’t need to look any further than conservatives’ fury at Sonia Sotomayor’s participation in the Ricci appellate decision to see how hollow their complaints about “judicial activism” are. Conservatives just really don’t like Title VII of the Civil Rights Act and they think the situation in New Haven illustrates the injustice of the law as written. So they want the judiciary to reverse its earlier precedents and change things around.
Maybe they’re right or maybe they’re wrong. But this is what judicial activism just is. They could be mounting a campaign in congress to change the law. But instead they’re trying to get the courts to do it for them. You saw the same thing in the other big conservative judicial outrage of recent years, the Supreme Court’s ruling in the Kelo eminent domain case. Here, again, what happened was that some lawyers had dreamed up a fairly clever and somewhat plausible argument as to why the court ought to step in and overrule the policy decisions of some elected officials. And what the court did was decline to step in and do that. In response, many jurisdictions passed some different laws putting more restrictions on the use of eminent domain.
In both Ricci and Kelo, in other words, you have courts acting how conservatives say they want courts to act—applying the law-as-written and not inventing new constitutional doctrines to justify wading into political controversies.
90 Responses to “Ricci and “Activism””
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May 31st, 2009 at 2:30 pm
You are an obstinate liar. The criticism was that Sotomayor ignored the issues and did not rule on the case. I have also pointed out to you that most legally adept conservatives do not think that judicial activism is a meaningful term. Stop spreading smears and lying.
May 31st, 2009 at 2:36 pm
To be clearer, Sotomayor issued a per curiam opinion on the case, which was the same “punting” on the issues, and you know how you guys hate de facto discrimination, which is what her actions basically effected for poor Mr. Ricci.
May 31st, 2009 at 2:38 pm
Donkey, are you tired from all of those logical jumps?
May 31st, 2009 at 2:45 pm
Conservatives complain about the decision because your judge decided that Due Process in evaluating the test results against the Civil Rights act had already been completed.
It was not, the conflict between the city and the Civil Rights law was assumed to be a handled through normal due process. There was no real finding, no due process between the city and the civil rights attorneys.
So your judge nominee decided that due process was not available to the individual plaintiff. She dismissed his claim of due process, a 14th amendment claim I think, based on evidence not established.
The nominee judge does not understand Due Process, when it applies and when not. The majority of Supreme Court cases will revolve around Due Process, for which she apparently has no clue. The correct decision was to grant a temporary stay on city actions until due process between the city and the civil rights attorney could be completed.
Now the case if before the Supreme Court, and you can bet your ass that the Supreme Court will agree with me. I am not a lawyer, never having tried a case or attended any law class. But it looks very bad for your nominee when the court reaches a conclusion I reached with a mere single reading of the case.
You client screwed this case, it was red flagged almost immediately by the higher court for review, immediately, based on her disregard of Due Process law.
May 31st, 2009 at 2:56 pm
It’s probably too much to ask for trolls with legal training, but could we at least get some trolls that have watched a few Matlock reruns in here?
May 31st, 2009 at 2:57 pm
Mr. Yglesias: Are you implying that conservatives have in the past taken hypocritical positions on judicial issues? This doesn’t sound like the conservatives I know!
May 31st, 2009 at 3:05 pm
“It’s probably too much to ask for trolls with legal training”
Then why is Yglesias’ constantly bring this up? The Supreme court has reviewed the case, and it does not look good for the nominee. So, Yglesias seems to make the argument that this case will likely be overturned because the existing Supremes are more ignorant than the nominee. Hardly a valid argument.
He has two choices, call the existing Supremes incompetent in constitutional issues; or let the nominee fail upon reversal of this key decision. Yglesias is on shaky grounds.
May 31st, 2009 at 3:10 pm
I have no real knowledge of any of the issues and no grounding in legal reasoning, yet, surprisingly, when I read her opinion I find all of my ignorant assessments affirmed.
Go figure.
May 31st, 2009 at 3:11 pm
Where do all these trolls come from? It’s really tedious to read the comments when nearly everybody is a flaming moron who’s not interested in good faith discussion.
May 31st, 2009 at 3:11 pm
Somehow when legal organizations and judges have called Sotomayor exceptionally competent and blog commenters who seem to be working backwards from the judicial decision they wanted and interpret the law from that position (judicial activism!) claim otherwise, somehow I don’t take the blog commenters seriously.
May 31st, 2009 at 3:11 pm
Let me add that I’m glad to hear that Matt Young has a better understanding of due process than Judge Sotomayor. Perhaps Obama should have nominated him for the Supreme Court.
May 31st, 2009 at 3:14 pm
There was no 14th Amendment Due Process claim raised in Ricci. The claims were solely under Title VII and the Equal Protection Clause of the 14th Amendment.
May 31st, 2009 at 3:16 pm
Thanks, DTM – so, basically, Matt Young has absolutely no idea what he’s talking about?
May 31st, 2009 at 3:20 pm
False.. So basically Matt Yglesias has absolutely no idea what he’s talking about.
May 31st, 2009 at 3:24 pm
Christ almighty. The Sailer fanboys were bad enough, but at least they could fucking read, at least most of the time. This is a damn disgrace to the art of trolling.
May 31st, 2009 at 3:28 pm
On the trolling thing.
I’ve got to say, my couple of days posting substantively here has really got me appreciating the Internet troll’s motivation. It doesn’t really matter whether my opposition to your positions is legitimate or not, arguable or not, you denizens of the echo chamber will always regard it as trolling. You’ve been driving me to participate more, because not only do I get to exercise the intellect in arguing for my position, I also get the supreme joy of driving partisans crazy whenever the smell something that even hints of disagreement. There’s really sort of a rush is knowing someone goes nuts whenever you post a link or make an inconvenient calculation.
Thank you, from the bottom of my heart.
May 31st, 2009 at 3:29 pm
that donkey doesn’t bother to understand the words to which he links, so let’s help him.
a minority of the judges thought that there was a due process issue. the majority disagreed. the minority position did not carry the day, and the presumption that there was a due process issue because the minority wanted there to be one is neither here nor there.
May 31st, 2009 at 3:30 pm
may i say, from the bottom of my heart, that donkey benjamin, that there’s very little i enjoy more than pretentious snotty right-wingers thinking they are exercising their intellect with their babble. thank you for your demonstration of same!
May 31st, 2009 at 3:31 pm
If the four hyper-conservatives currently sitting on the Supreme Court almost always vote as block, aren’t they the very definition of activist judges?
May 31st, 2009 at 3:32 pm
Howard,
You’ve very welcome.
May 31st, 2009 at 3:55 pm
“To be clearer, Sotomayor issued a per curiam opinion on the case, which was the same “punting” on the issues”
This is basically true, but punting is the right move here. Had she dealt with the issue of the constitutionality of Section VII, any ruling she made would have been appealed anyway. Instead, she recommended that the Supreme Court review the case, which is a more efficient way of handling the situation. And it pretty much guaranteed that the Supreme Court would look at it, which they are. And the Supreme Court won’t rule against her since she didn’t actually rule on it in the first place. She merely passed it along to where it should go and would have gone anyway.
May 31st, 2009 at 4:03 pm
So fostert, she voted present. Appropriate enough for an Obama nominee.
May 31st, 2009 at 4:05 pm
We have sure been told now.
May 31st, 2009 at 4:07 pm
Donkey Benjamin,
I don’t think you realize the echo chamber you’ve built around yourself when you assume a bunch of liberals mindlessly shouting “TROLL!” reinforces your brilliance. It doesn’t.
Whatever your ideas, when you write from such an entitled position of superiority (calling Matt an “obstinate liar,” for instance), and act like an overall dickhead, you’re going to piss some people off and it won’t be a sign of how bright you are, or the strength of your arguments.
Automatically assuming you must be right because you’ve made a liberal mad is a danger to your thinking, and a threat to conservatism.
May 31st, 2009 at 4:10 pm
Brad – seriously?
Donkey – the phrase “due process” does not appear anywhere in the Volokh post you link to.
May 31st, 2009 at 4:11 pm
Sotomayor alone decided the case? What happened to the judges who decided the original case for New Haven? Did Sotomayor have her hand up their asses so that she could manipulate them to rule in the way she wanted? Did she have a remote control device? A mind control helmet like in the X-Men movie?
May 31st, 2009 at 4:18 pm
Walt – in addition to the District Court judge who made the initial ruling, don’t forget the other two judges on the initial panel who agreed with Sotomayor (Sack and Pooler), and the four other judges on the Circuit Court who refused to review the case en banc (Calabresi, Straub, Katzman, and Parker).
May 31st, 2009 at 4:28 pm
But that’s no mystery, John. Like most liberal activist judges, Sotomayor can exert her psionic powers over short distances. It’s the long-distance stuff that’s implausible.
May 31st, 2009 at 4:45 pm
Ya sure, and Bush v Gore was decided on a literal application of the law and had nothing to do with empathy for Bush-Cheney.
The outcome Christian freaks wanted out of the Terri Schaivo case was evidence of their firm commitment to the law, as grounded in the best available medical science. Empathy had nothing to do with it.
Not a single conservative had a shred of empathy for Elian Gonzales. Strict constructionism demanded that his father be stripped of custody so Elian could stay here.
It’s time to put this empathy nonsense to rest.
May 31st, 2009 at 4:45 pm
Listen up because you may wish to take notes:
In any application of the “law as written”, you must consider not just stare decisis, but also cingere primigenus. Therefore, “judicial activism” is really to be found in the work of those who, directly contrary to Regina v. Paty, ignored the Due Process for which she apparently has no clue. And, like a typical cod-oil salesperson, your client punted the goal rather than risk political felo de se.
Ah, but it is so much easier to construct an elaborate man-of-straw, with straw clothing and a straw hat, living in a straw house filled with various straw artifacts, such as a straw TEA BAG, which you may then blow down even as the wolves have before you.
Ms. Sotomayor is literally part of an organization which gave an award to another person who directly translates to The Race.
Remember, all of the Constitution was new once. Even the sacrosanct “amendments” (we know what I mean here). But is now no longer new. Are we to believe that activist judges can simply legislate it away?
In the case of this client, sadly, I fear the answer is Yes. What of the firemen who so faithfully hung their hats on what used to be called a “Horatio Alger” story? In these stories, which you and the Judge have apparently Forgotten, Mr. Alger never had a job revoked because the qualifying test was systematically biased against others. No, he breathed deep of the coal (not the Kool-Aid) and became a SCOTUS without the privileges of living, literally, within walking distance of YANKEE STADIUM.
And by the way, I have Matlock seasons 3-8 on DVD. Does that answer your question?
May 31st, 2009 at 4:46 pm
Donkey–
“You are an obstinate liar” may bear on the substance of the question “what sort of a person is Matthew Yglesias?”
It does not bear on the substance of the question “is Sonia Sotomayor a judicial activist.”
The latter question is a substantive issue the country has to deal with. The answer given to the former question, not to mention asking it, is a mere personal insult, patently untrue, quite unsupported, and, most important, totally irrelevant to the matter at hand.
Trolling is fine–but use bait.
One useful definition of judicial activism is “a readiness to use the power of judicial review to overrule the actions of the nation’s elected public officials.” On this measure, Justice Breyer is, according to one fairly recent survey, the least activist and Justice Thomas the most. Legislating from the bench does not seem to be something justices selected by Democrats are inclined towards.
May 31st, 2009 at 4:52 pm
Empathy is how laypeople decide cases. Republicans’ fear of Sotomayor is that she might rule in favor of someone with whom Republicans don’t empathize.
May 31st, 2009 at 4:59 pm
“What happened to the judges who decided the original case for New Haven? ”
Like the nominee, these other judges have to accept the humiliation that the case was kicked up right to the Supreme court to evaluate some messy interpretation of law. The Ricci case seem to disqualify them also for Supreme positions.
“she recommended that the Supreme Court review the case,”
Reference? I never got the idea that she wanted this kicked upstairs at all, quite the opposite, the complete panel of appeals judges convened and they barely let it go with a 7/6 decision. The dissenting judge, was quite concerned and he urged further review, not the nominee.
By the way, I just read the oral arguments before the Supremes, and the central issue involved was whether the city went through a appropriate due process before rejecting the test because whites passed.
Again, let me remind everyone, this case was fraught with conflicts from the start. It is the nominee who washed these conflicts under the rug. Now she is faced with the embarrassment of having her judicial expertise under review by her colleagues even as she is undergoing a nomination hearing.
May 31st, 2009 at 5:09 pm
This isn’t just some ad-hoc traipsing through her record to pull up something to oppose Sotomayor, either, which from a political economy standpoint one would expect the Republicans to probably try anyway at a major confirmation hearing. This case pricked the legal blogosphere’s ears as soon as the opinion was issued about a year ago. Judge Cabranes’ dissent was scathing in its excoriation of the decision, so much so that Ed Whelan at the NRO blogged at about it at the time, which is when it reached the sounding board at the Volokh Conspiracy and my own ears. Steve Sailer has been going on about it for months.
May 31st, 2009 at 5:15 pm
If Matt is going to keep posting his tedious tirades about the duty of the Republicans to examine Sotomayor’s judicial record in order to effectively oppose her, I reserve and relish the right to call him an “obstinate liar” when he refuses to accurately characterize the arguments behind the erudite conservative’s opposition to her. If he expects good faith from us, he similarly needs to take steps towards rapprochement himself.
May 31st, 2009 at 5:22 pm
For once, I agree with Matt. Don’t give money ot a multi-billion dollar endowment.
Find a school with poor kids and give them the money. Even the crappy schools could really use the money for relatively up to date books, computers, gym supplies, after school activities and such. If you can find a nearby school that’s making magic out of crap, good. If not, every little bit helps.
May 31st, 2009 at 5:26 pm
You saw the same thing in the other big conservative judicial outrage of recent years, the Supreme Court’s ruling in the Kelo eminent domain case.
Since you yourself have no grounding in the law, who was it that characterized Kelo to you in that fashion? By the plain meaning of the Fifth Amendment text, the taking in Kelo was outside the bounds of the traditional limitations on eminent domain, i.e. private economic benefit with the possibility of an incidental public benefit is not a taking for “public use.” To contradict the plain meaning of a legal text–let alone the Constitution–for the sake of amorphous public policy considerations is the very definition of judicial activism.
Remember the first rule of all writing: write what you know. You don’t know law.
May 31st, 2009 at 5:30 pm
The Ricci case seem to disqualify them also for Supreme positions.
Guido Calabresi – unfit for the Supreme Court. Take a hike, professor.
May 31st, 2009 at 5:38 pm
It’s my understanding that the case wasn’t to decide whether or not the situation was fair, but whether or not the city had acted within the law.
May 31st, 2009 at 5:51 pm
Whenever I see a conservatroll call Matt a liar and start swearing, I know he’s really hit a nerve.
Really, Jackass, all you’re doing is advertising the fact that you’re holding a losing hand.
May 31st, 2009 at 5:57 pm
Hey, Jackass, from your own link:
Since you don’t know the difference between the Equal Protection clause and the Due Process clause – since, indeed, you don’t even seem to know that there are two clauses – perhaps it’s time to crack open a frosty tallboy of STFU, and stop deigning to lecture people about a topic about which you are so manifestly ignorant.
May 31st, 2009 at 5:59 pm
What IS it with these trolls? Do you think that adopting a haughty tone is going to prevent people from noticing when your comments are completely ignorant, full of misstatements of the law, and nonsensical?
Mill Acts? Midkiff? Hecht’s? What on earth are THOSE? Anyway, yoo dont no the plane meening of the law, and im smrat.
Idiots. You think that half-remembering something you read on a political blog makes you legal experts.
May 31st, 2009 at 6:05 pm
On the trolling thing.
I’ve got to say, my couple of days posting substantively here has really got me appreciating the Internet troll’s motivation. It doesn’t really matter whether my opposition to your positions is legitimate or not, arguable or not, you denizens of the echo chamber will always regard it as trolling. You’ve been driving me to participate more, because not only do I get to exercise the intellect in arguing for my position, I also get the supreme joy of driving partisans crazy whenever the smell something that even hints of disagreement. There’s really sort of a rush is knowing someone goes nuts whenever you post a link or make an inconvenient calculation.
Thank you, from the bottom of my heart.
You’re not a troll for “substantive posting”, but rather your dishonesty (someone caught you talking about how “we” white people could shed “our” privilege and then later pretending to be black to give your racism some cover–that was you, right?) and posts (obstinate liar, etc.) that don’t engage in debate and have no purpose other than to get people’s dander up.
May 31st, 2009 at 6:11 pm
This is just a giant advertisement that you’re not to be taking seriously. Anyone who actually considers the opinions of self-appointed “race scientists” to be worth listening to is an idiot. Great job shrinking your party. Trust me, Latino voters aren’t going to forget how guys like Gingrich and Liddy have reacted to this appointment.
May 31st, 2009 at 6:14 pm
Anthony,
You can choose to not believe that I’m black or not. I don’t really care, it’s not an all-consuming issue with me unlike it you. Moreover, I’m quite sure Erasmus called me a n***** in that thread, you know, purportedly to explain how conservatives REALLY felt about minorities. That’s the usual thing with leftists, you know, kind of the way that they’re the only ones throwing bricks in universities to protect free speech. So, say what you feel. It’s not my comment thread or my community to trash with inane flame wars, fucker.
Actually I spent like an hour the other night laughing uncontrollably after psuedo’s legitimately funny comments about Matt inviting people over to shit in the corner of his condo. In that vein, let’s all have a poopy party.
May 31st, 2009 at 6:17 pm
You’re also a troll because you ignore when you’ve been called out for substantive failure of logic and knowledge, and choose instead to write about poopy parties.
May 31st, 2009 at 6:21 pm
Wow, Donkey really sounds like a crazy person. From confused to insane in under 50 posts this thread.
May 31st, 2009 at 6:22 pm
Fuck you and your momma, joe from Lowell. When was the last time Dick Cheney came in your ass?
May 31st, 2009 at 6:27 pm
You stay classy, wingnut.
May 31st, 2009 at 6:29 pm
The Supreme court has reviewed the case, and it does not look good for the nominee.
Not really. Unless your version of the Constitution vests lower courts with the ability to dispense with precedent.
the central issue involved was whether the city went through a appropriate due process before rejecting the test because whites passed.
Just because you decide something requires a “due process” doesn’t make it a due process case. Also, just because your anti-perspirant keeps one armpit dry but not the other doesn’t make it an equal protection case. Sorry about that.
May 31st, 2009 at 6:30 pm
(Uh, donk? You’re the one shitting in the corner.)
May 31st, 2009 at 6:31 pm
I may not recall correctly, and I’m not going to search, but I’d suggest dropping the PI routine with Benjamin’s Ass, because I’m pretty sure that where he mentioned “we” white people he was attempting to mock or parody the presumed attitudes of ‘the left’, so if it’s the reference I think, there wasn’t any contradiction between who he said he was.
If it entertains you, point out the shitty arguments and troll triumphalism, so common of the species, but stay out of the nasty crap.
May 31st, 2009 at 6:31 pm
Duh. The fuck do I care?
May 31st, 2009 at 6:48 pm
I may not recall correctly, and I’m not going to search, but I’d suggest dropping the PI routine with Benjamin’s Ass, because I’m pretty sure that where he mentioned “we” white people he was attempting to mock or parody the presumed attitudes of ‘the left’, so if it’s the reference I think, there wasn’t any contradiction between who he said he was.
If it entertains you, point out the shitty arguments and troll triumphalism, so common of the species, but stay out of the nasty crap.
You’re right. Good points. Fair enough. Thanks.
May 31st, 2009 at 7:01 pm
You know, if this nomination has produced this degree of right wing unhinging, what should be Obama’s next Supreme Court justice nominee be like?
May 31st, 2009 at 7:06 pm
You know, if this nomination has produced this degree of right wing unhinging, what should be Obama’s next Supreme Court justice nominee be like?
A woman who has had an abortion.
May 31st, 2009 at 7:07 pm
“Like the nominee, these other judges have to accept the humiliation that the case was kicked up right to the Supreme court to evaluate some messy interpretation of law.”
How is this remotely humiliating? They were the ones to kick the case up to the Supreme Court, so it being there is an affirmation of their intent. So I guess you’re saying that getting what you want is a form of humiliation. I’ll accept that, but only because I have already resigned myself to the fact that conservatives have their own definitions for words. In my definition, humiliation for a judge would be to be overturned, like Sam Alito, who was always overturned when he faced appeal. And in this case, what the Second Circuit did was to accelerate the process, thus ensuring that the plaintiffs would get justice faster. Yet this is somehow a problematic case of judicial activism? Whatever. The problem conservatives really have but won’t admit is that they wanted the Appeals Court to over-rule precedent and declare Section VII of the Civil Rights Act unconstitutional, which would be a classic case of judicial activism. But conservative have their own definitions for words, so when a conservative judge does it, it’s “strict constructionalism.” But let’s face it, if we wanted to really follow the original intent of the Constitution, we’d still have slavery and all non-whites would be considered three fourths of a person. I have no doubt that conservatives really do favor those positions, but they should really come and say it. If not, they should admit that they are just judicial activists of another form.
May 31st, 2009 at 7:10 pm
A good start, but I want to see if there’s a female judge who has actually been a doctor who performed abortions. And is lesbian, too. That would be awesome.
May 31st, 2009 at 7:33 pm
Associate Justice Ani DiFranco.
May 31st, 2009 at 7:40 pm
You know, if this nomination has produced this degree of right wing unhinging, what should be Obama’s next Supreme Court justice nominee be like?
More qualified than Harriet Miers.
May 31st, 2009 at 8:01 pm
You know, if this nomination has produced this degree of right wing unhinging, what should be Obama’s next Supreme Court justice nominee be like?
Well, if Obama (or any successor Democratic president for that matter) gets to replace Scalia, Thomas, Kennedy, Roberts, or Alito, the current debate will look like a polite intellectual discussion (assuming, of course, that the Rehugs have not imploded into obscurity by then). Of course, since Rick Perry and his fellow loons will have reformed the Confederacy by then (and imported Michelle Bachman to lead their citizen army of pitchforkers), filibuster may be a moot point.
May 31st, 2009 at 8:51 pm
@59 joe from Lowell: “Associate Justice Ani DiFranco.”
Oh my. That would put them over the edge. We would have to lock up the whole Republican Party in the looney bin with Nurse Ratchet. The GOP simply did not have enough votes to block the nominee, and went crazy.
http://www.youtube.com/watch?v=J74Yj2Dn8M8
Juicy fruit?
May 31st, 2009 at 8:56 pm
This article misrepresents what conservatives object to as judicial activism.
Ricci is wrong b/c the constitution unambiguously forbids racial discrimination. That previous activist judges have said otherwise doesn’t change anything. Kelo is wrong b/c the constitution does not provide for the taking of private property for private uses. Liberal schizophrenic embrace of hypertextualism in reading the second amendment is insulting and unfaithful to the constitution.
When conservatives say they oppose judicial activism they aren’t saying that they want judges to sleep through cases. They are saying that judges should apply the constitution in the face of politics and bad precedent. Don’t be confused by the fact that conservatives value the constitution over what judges say about it.
May 31st, 2009 at 9:12 pm
Seems to me Ricci and Kelo are two totally different situations. In Ricci, New Haven was following settled interpretation of existing law, and it’s entirely appropriate for Judge Sotomayor to kick it upstairs for a final decision (i.e., tell us if this means what we all think it means).
In Kelo, by contrast, New London used what I would call a novel interpretation of the phrase “public use” (anything that increases tax revenue or any other whim that comes over the town administration is a public use, to put it cynically). The Supreme Court agreed with this novel interpretation, unfortunately. Had Judge Sotomayor been on the Appeals panel that reviewed Kelo and had she voted to sustain the taking I’d be upset with her, but as it stands I’ve no problem.
Now, in light of the eminent domain situation post-Kelo, Judge Sotomayor’s joining in the decision in Didden v. Village of Port Chester could be viewed as similar to her part in the Ricci decision, i.e., in the absence of state laws to the contrary there are no federal constitutional limits on eminent domain takings worth worrying about. The decision by the Supreme Court to deny cert in this case would indicate she is right.
As to MY’s larger point, he’s absolutely right. If you don’t like the law, then work to change the law, and that’s what’s been done in a number of states regarding eminent domain (with greater or lesser effectiveness, mostly depending on the width of the exemption for blight). More than thirty years ago I learned that pre-employment or pre-promotion testing was a touchy area if the tests had a disparate impact, and nothing’s changed on that front. If you don’t like the law, then work to get the law changed, or work to get the Supreme Court to reverse their previous decisions, but don’t depend on an appeals court judge to overrule that much precedent.
May 31st, 2009 at 9:16 pm
There are different ways to interpret Constitutional law that are all rooted in a genuine concern to protect it. I agree with the Living Constitution and am prone to be on the side of the spirit of the law. I see no reason why the U.S. cannot be more progressive and inclusive than the founding fathers. It’s a different world.
What the Republicans are now calling “activism” is the way the Constitution has been interpreted for quite some time. Thomas’ view that precedent doesn’t count is truly radical. To see this view as being purely objective and devoid of any ideological considerations is daft, at best. It’s especially galling coming from a party that takes liberties with words to level that kills irony.
Everyone has their bias. Everyone.
May 31st, 2009 at 9:25 pm
By the way, I just read the oral arguments before the Supremes, and the central issue involved was whether the city went through a appropriate due process before rejecting the test because whites passed.
Here is the oral argument transcript:
Ricci Oral Argument
The phrase “due process” appears nowhere in the transcript.
May 31st, 2009 at 9:39 pm
Exactly, DTM. One reason why being trained as a lawyer and having experience on the bench is so important to the task of being a Supreme Court Justice, is because the law is very complex. An appeal is specific. In order to challenge the fairness of Affirmative Action itself, one would pretty much have to challenge it directly, though a Supreme Court ruling on this case would be influential.
I don’t mean to be priggy, but this same issue came up in a TP thread on the issue of the Uigher former-prisoners at Gitmo. People were going off half cocked. In all fairness, the blog itself indicated that the author didn’t read the case, but he linked to it, and it’s not that hard to read these cases. If the wheels of justice grind slowly, it’s only so that the wheels don’t have to grind endlessly in one place.
May 31st, 2009 at 9:55 pm
nathan,
EVERY SINGLE CASE in which the courts strike down a law, they do so based on a claim that the law violates the constitution. What you’re saying here is that there can be no such thing as judicial activism, because striking things down based on a constitutional claim can’t be judicial activism. And unless you’re willing to admit that you use the term to mean nothing but “ruling in a way I disagree with,” then claiming that YOUR claims on the constitution are true, and the other guy’s is false is not a rebuttal here.
Let’s say that’s true, and there’s no such thing as case law in our legal system: the fact that the federal and state legislatures have passed laws, and the president and governor have executed them in a way that displeases you, DOES change something. It means that those laws and those actions have legal and democratic legitimacy. Now, that’s not the whole ballgame, and the judiciary can and should strike down laws supported by the legislative branch, the executive branch, the states, the federal government, the people of a state, the people of the United States, hell anybody, if it violates the constitution. But when they do, there’s a word for that: judicial activism.
Um, ok. Then they’re using the term “judicial activism” wrong. It already has a meaning. That’s not it.
May 31st, 2009 at 10:04 pm
Don K,
No, they didn’t. The promotion of economic development has been used to satisfy the “public use” requirement when land was taken and transfered with “just compensation” to a different owner since the Mill Acts were upheld in the 18th century. Cases in which privately owned land and buildings were taken for a redevelopment plan intended to promote economic development were upheld, and have oft been cited, going back to the 1950s.
There wasn’t really anything novel about that case, except that the political/legal group that argued it thought they had a particularly sympathetic poster child and a particularly friendly court.
May 31st, 2009 at 10:31 pm
Nobody was hired on the basis of that test because of their race. The test was thrown out. If the city had instead decided to only promote minorities despite the test results, that would be another matter, but nobody got promoted. When exactly zero people of a certain race working somewhere pass a test, that should at least raise a red flag that something is wrong with a test.
May 31st, 2009 at 10:33 pm
Which is not to say “No, it’s call, this type of thing was upheld during the fight over the Urban Renewal projects” is the most inspiring battle cry from a political perspective, but as far as the law goes, Midkiff and Poletown and Berman, like ‘em or not, are relevant case law.
Personally, I would have liked to see the court be a little more activist, and provide some guidance in the Kelo case – that is, put forward some novel constitutional doctrines for judging whether a public purpose is met beyond “the city says so” – but THAT would been the invention of novel constitutional doctrine. Not that there’s anything wrong with that. Times and practices and understandings change, after all.
May 31st, 2009 at 11:00 pm
The mean black score was at the 20th percentile on the firefighters’ test at issue in the Ricci case. See all the scores and the methodology here. On the five major grad and professional school tests (GRE, LSAT, MCAT, GMAT, and DCAT), blacks score at the 10th to 18th percentile of white scores.
Thusly I conclude Reality Man is completely wrong.
May 31st, 2009 at 11:05 pm
More accurately, the problem is the “winnowing” of people by the process of promotion. If there were more slots for promotion, (unfortunately lots more), presumably some blacks would have made it, which would be the opposite of what you would see in a malicious discrimination case.
May 31st, 2009 at 11:11 pm
THAT’S your argument? Black people really are stupid, so of course they don’t pass tests?
THAT’S your argument? “We know black people are stupid, so when we get racially-skewed results, we just assume that’s why.”
Holy crap, most of them at least pretend this isn’t what they think.
May 31st, 2009 at 11:16 pm
If I were leaning toward thinking that Affirmative Action is no longer needed, I have changed my mind. The reaction to Judge Sotomayor’s nomination is reminding me of the bad ol’ days.
May 31st, 2009 at 11:41 pm
Joe from Lowell,
Perhaps the reason you’re so intemperate is that you couldn’t being born with the same wide mouth and long gullet that some dirty sailor gave your mother when stuffed his cock so far down her throat that you came out her nasty hole.
May 31st, 2009 at 11:43 pm
Correction: couldn’t help born with.
May 31st, 2009 at 11:52 pm
Guilty conscience?
May 31st, 2009 at 11:53 pm
So I fucked, used, abused your mother. So the fuck what?
May 31st, 2009 at 11:58 pm
So, have you figured out the due process thing yet?
I’m sure everyone’s dying to know what you think about the legal issues before the 2nd Circuit Court of Appeals.
June 1st, 2009 at 12:47 am
Troll, roll over! Troll, lick your ass! There’s an obedient troll!
June 1st, 2009 at 1:15 am
“So I fucked, used, abused your mother. So the fuck what?’
Nope. You lose.
June 1st, 2009 at 5:03 am
“Nope. You lose.”
No, everyone loses. We are arguing over a ruling that didn’t happen. They decided that this was a case that would be better handled at the highest level. It’s really not an issue at all. It was a punt and it should have been a punt. This issue is far too important to be dealt with on the appellate level. That judges should be punished for realizing it is just absurd. The issue needs to be dealt with on the Supreme Court level because only they can deal with the constitutional issue of whether the law is constitutional. Asking the appellate level to be higher than the Supreme Court to satisfy conservative beliefs seem pretty damn crazy. As a crazy person, I think they are screwing with my concept of the law. They are making us crazy people look bad. We crazy people are real people who work with you, the Republicans need a padded room. So we really need to redefine crazy, I’m willing to stay within that definition, but those Republicans are seriously nuts. I’ve traveled to all kinds of places and seen all kinds of concepts of reality, but the Republican concept only exists in the radical South. Sadly, that defines US. And they can’t even accept the concept that blacks are human beings and Catholics are Christians. And they say I’m crazy? It makes me think of the guy in Douglas Adams’ fourth book where the guy built a house around the entire world so he could be outside of it. I tried to resist, but at this point, the rest of society really is Outside Of The Asylum. Count me as crazy, because you people are completely nuts. At this point, if anyone thought I was sane, I’d just kill myself. Sane means sadistic killing and torture. I don’t want to be associated with such things. I’m glad to be crazy, because you sane people are way too violent and angry for me.
June 1st, 2009 at 5:12 am
“the rest of society really is Outside Of The Asylum”
Oops, I tricked myself, I meant Inside the Asylum. The sanctuary was the one place that people were actually sane. I’d like o go there. See you in Thailand. They may not be able to keep a government without having a coup, but at least they have some sanity. Or insanity, as your definition might be. We can define that word how we want. And the majority gets to define it, however irrational they might be.
June 1st, 2009 at 5:28 am
Man, it would just be nice to be considered sane, but when the rest of the world is completely nuts, it’s really hard to know where sane is. So I’ll just live my life and let the rest of you think I’m crazy. When you stop killing each other over silly concepts, I’ll re-enter the world. If you can do it in the next ten thousand years, I might actually care about humanity. Until then, we’re just monkeys whose brains got too big for our own good. Tell me why we shouldn’t destroy ourselves. And if we do, who would care?
June 1st, 2009 at 8:07 am
last!
June 1st, 2009 at 3:59 pm
More honest rightwing trolls would say;
Judge Sotomayor should have shown more empathy for the white firefighters and legislated from the bench instead of relying on well established precedent.
June 1st, 2009 at 6:23 pm
It’s amazing what a big deal is being made out of such a simple case. She is being accused of being an activist judge because she wasn’t being an activist judge. Why don’t people who disagree with this decision complain to the city.
June 1st, 2009 at 8:36 pm
THAT’S your argument? Black people really are stupid, so of course they don’t pass tests?
On average, black IQs are about a standard deviation lower than whites (Note that I said on average). So far, no one has been able to develop a cognitive test with any real-world predictive results that has not, more or less, shown this (at least for a sample size of any significance).
THAT’S your argument? “We know black people are stupid, so when we get racially-skewed results, we just assume that’s why.”
Your argument being: every single IQ, aptitude, or other cognitive ability test is, for some inexplicable reason, racist.
June 1st, 2009 at 8:50 pm
Let’s say that’s true, and there’s no such thing as case law in our legal system: the fact that the federal and state legislatures have passed laws, and the president and governor have executed them in a way that displeases you, DOES change something. It means that those laws and those actions have legal and democratic legitimacy. Now, that’s not the whole ballgame, and the judiciary can and should strike down laws supported by the legislative branch, the executive branch, the states, the federal government, the people of a state, the people of the United States, hell anybody, if it violates the constitution. But when they do, there’s a word for that: judicial activism.
What people are generally upset about when they are upset about “judicial activism” is an expansive interpretation of the Constitution where the goal is to read the desired outcome into the Constitution.
While I sympathize with the plaintiffs in the Ricci case and would like to see a vast reform of Title VII, I do not know enough about the relevant law to say whether or not the judiciary has a role to play here.
To the extent that “disparate impact” and the “4/5ths rule” (that a test is presumed to be racially biased if the racial group with the lowest performance does not pass at a rate at least 80% that of the racial gorup with the highest performance) is a part of the written legislation, I would be hesitant to have the Court overturn it.
But to the extent that it is based on executive-branch regulation (i.e. the EEOC’s regulations) the Court should be free to strike it down as a bad application of legislation, and to the extent that “disparate impact” was created by the judiciary as a test rather than by the legislation, the Court is free to reverse it.
Now, if Sotomayor “punted” the decision due to her not being in a position to make that decision, I have no problems with it.
Essentially, while I am likely not going to like Sotomayor much as a judge (I get the impression that she is significanly more liberal than I would be comfortable with), I have not yet seen any evidence that she is a particularly outrageous choice or out-of-keeping with what you would assume that a liberal Democrat would pick for a justice.
In short, I am not likely to put up a lot of fight against Sotomayor. In terms of fighting for the issues I care about, I don’t see it as a batle worth fighting, at least not based on the information I currently have.
I may complain about the double standards on people making stupid racial comments, but I am not going to do so on the basis that Sotomayor should be hounded out like Trent Lott was.