Jul 14th, 2009 at 1:02 pm
On Activist Judging
I’ve got a new column up at the Daily Beast arguing that the Sotomayor hearings show that conservatives love activist judging as long as it’s done on behalf of white people.
23 Responses to “On Activist Judging”
Register
RSSLogin
Advertisement
Visit Our Affiliated Sites
Books By Matthew Yglesias
Topic CloudView topics sorted by popularity
Abortion
Afghanistan
Basketball
Blanche Lincoln
Budget
China
climate
Congress
Crime
DC
Demographics
Economics
Economy
Energy
Environment
EU
Finance
Football
Gender
Health Care
History
Inequality
Infrastructure
Intellectual Property
International Law
International Relations
Israel
Media
Monetary Policy
National Security
NBA
Palestine
Political Reform
Public Health
Public Opinion
Race
Regulation
Sarah Palin
Sports
Stimulus
Sweden
taxes
Technology
Trade
transportation
Featured
Subscribe to the Progress Report
Contact Matthew Yglesias
Use this form to contact blog author Matthew Yglesias.
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
July 14th, 2009 at 1:04 pm
Is it just me, or have the Democratic Senators pretty much adopted the line that “activist judge just means a judge who reaches a decision you don’t like”? Because that seems like a step forward to me, in that they are no longer running scared from the bare rhetoric.
July 14th, 2009 at 1:09 pm
???
After all, why does Matthew Yglesias have an op-ed on the Sotomayor hearings in the Daily Beast? Does he have legal expertise? Expertise on the Supreme Court? Knowledge of the confirmation process?
Perhaps during his brief time in the public spotlight he developed a reputation for an unusually solid grasp of complicated legal details? Or is the idea that he’s known for being honest? A good-faith participant in public policy debates?
Well, no.
July 14th, 2009 at 1:16 pm
After years of complaining that liberal judges show no restraint, conservatives are now outraged that Sotomayor “punted” on the Ricci case, leaving the Supreme Court to write a 93-page opinion to explain the obvious straightforward meaning of the law.
It’s a real mistake to think of this as being grounded in some sort of intellectual error. It’s kind of like how conservatives insist on using cost-benefit analysis to evaluate environmental regulations, but never analyze military spending in an economic framework. The problem clearly isn’t that conservatives don’t intellectually understand the limitations of cost-benefit analysis.
July 14th, 2009 at 1:19 pm
I’d love to live in a world where people commenting on legal issues in major media outlets knew what the heck they were talking about. But this ain’t that world, so why pick on Matt in particular?
July 14th, 2009 at 1:28 pm
@Al
You’re a GD moron. DailyBeast vs WashPo. Are you serious? You don’t see the difference?
GTFO
July 14th, 2009 at 1:29 pm
Ah yes, the usual Yglesias shtick. Everyone’s a racist except him and select liberal pals. He’s said it a million times but he never gets tired of saying it. It would be irritating if it weren’t so tired and worn out.
This whole really stupid article is premised on the idea that conservatives believe courts should always defer to elected legislatures. No one believes that and no one argues that. “Activism” from a conservative point of view is advancing a particular ideological agenda untethered (or very thinly grounded) to any constitutional bases. The Heller case is not activism by any stretch. Neither is Morrison or Lopez. My guess is Matt hasn’t read any of them.
But hey, at least Matt got to call some people racists in print again. Must be so much fun.
July 14th, 2009 at 1:30 pm
The difference is not in the means but the ends. Liberal cases seek to advance the rights of racial minorities, women, gays, etc., Conservative jurists have sought to advance the interests of white people, corporations, gun owners, and perpetrators of domestic violence.
Awesome Mat.
Without appearing to insult you, I am inclined to assert that we do need a Jonah Goldberg with a brain.
July 14th, 2009 at 1:31 pm
I’d love to live in a world where people commenting on legal issues in major media outlets knew what the heck they were talking about. But this ain’t that world, so why pick on Matt in particular?
Ostensibly, because Yglesias just recently wrote a post criticizing Palin for writing an editorial despite not knowing what she’s talking about.
In reality, come on, it’s Al, take a guess.
July 14th, 2009 at 1:33 pm
“Activism” from a conservative point of view is advancing a particular ideological agenda untethered (or very thinly grounded) to any constitutional bases.
According to who?
The Heller case is not activism by any stretch.
Yes it is.
July 14th, 2009 at 1:36 pm
“Activism” from a conservative point of view is advancing a particular ideological agenda untethered (or very thinly grounded) to any constitutional bases.
ah yes – like the conservative judges who gave corporations the rights of citizens – there’s an ideological agenda “untethered to any constitutional bases” – but you won’t find a conservative agreeing with that, of course.
July 14th, 2009 at 1:38 pm
Shorter Brad @ 6:
“I don’t like the definition of judicial activism that Matt used because it makes Republicans look like hypocrites. Therefore he is an idiot.”
July 14th, 2009 at 1:43 pm
Yglesias’s article says:
it’s not the role of appeals court judges to throw out precedents
Well, sometimes it is. A Circuit Court of Appeals can overrule its own prior precedent. But a Circuit Court cannot overrule a SCOTUS precedent.
Yglesias also writes: Liberals have, of course, played a similar game when they have had the judicial votes to do so, striking down democratically enacted laws against sodomy, against school segregation, against contraceptive bans, against miscegenation laws, and against abortion criminalization.
This sentence is screwed up. Somebody forgot to proofread. It should say “… against sodomy, for school segregation, against contraceptive sales, against miscegenation, and against abortion.”
July 14th, 2009 at 1:51 pm
After all, Al has repeatedly demonstrated that he’s too stupid to post here.
Then again, it helps our cause to give conservatives a venue in which to humiliate themselves.
July 14th, 2009 at 1:53 pm
Wow. You don’t read very well, do you?
July 14th, 2009 at 1:57 pm
Can anyone name for me an example of conservatives denouncing a judge or a decision as “activist” for advancing a conservative or right-wing agenda?
So the first part of the definition is clearly wrong.
The second part is wrong as well. Conservatives simply use the phrase “untethered (or very thinly grounded) to any constitutional basis” to describe any decision they don’t like, no matter how strongly that basis is. For example, the right to counsel is black-letter law in the Constitution itself, and yet decisions throwing out convictions obtained through questioning that took place while a defendant was being denied counsel are commonly referred to by conservatives as “judicial activism.”
July 14th, 2009 at 2:02 pm
Liberals have, of course, played a similar game when they have had the judicial votes to do so, striking down democratically enacted laws against sodomy, against school segregation, against contraceptive bans, against miscegenation laws, and against abortion criminalization.
If a “democratically enacted” law is passed that is unconstitutional, why is it playing a “game” for the Supreme Court to fulfill it’s function of Judicial oversight of the law? Just because something passes in a democratically elected legislature doesn’t automatically mean that it’s constitional – it’s extremely short-sighted and contrary to the idea of the separation of powers to assume that everything passed by a legislature is a priori sacrosanct from judicial interpretation and correction when necessary – otherwise you’re talking tyrrany of the majority – which our system takes great pains to prevent.
July 14th, 2009 at 2:03 pm
The only neutral definition of activism vs restraint possible is the willingness or unwillingness of judges or courts to overturn duly enacted legislation. Any other definition is special pleading for a particular set of policy outcomes.
July 14th, 2009 at 2:06 pm
“Activism” from a conservative point of view is advancing a particular ideological agenda untethered (or very thinly grounded) to any constitutional bases.
In other words, “activism” is any decision you don’t like and don’t agree with.
A Circuit Court of Appeals can overrule its own prior precedent.
Although usually a panel of a circuit court can’t overrule a prior panel, and instead that takes the circuit court acting en banc.
July 14th, 2009 at 2:42 pm
Re Al at 2: “After all, why does Matthew Yglesias have an op-ed on the Sotomayor hearings in the Daily Beast? Does he have legal expertise? Expertise on the Supreme Court? Knowledge of the confirmation process?”
————
Well, I would argue that Senator Sessions has set the bar pretty low for commentary on this nomination. Anyone who represents and upholds the values of a racist shithole like Alabama is hardly qualified to hold himself up as an advocate for “impartial justice”.
By the way, Sessions evidently represents and upholds the values of the Republican Party as well. That’s why they made him their prime spokeman on this matter.
July 14th, 2009 at 2:49 pm
As I listened Jeff Session’s questioning and comments, he seems desperate to paint Sotomayor as an affirmative action proponent, mostly on the evidence of her ruling in the Ricci case, which was a case that wasn’t answering a question of affirmative action. So it does make you wonder, if she were white, even a white male, if Sessions would still be making the implication.
It definitely bugs.
July 14th, 2009 at 4:11 pm
I was going to note how many trolls there are at the Daily Beast, but I see there are a number here as well. Funny how they all had to miss Matt’s example of using the 14th Amendment to protect corporate interests in order to whine things like: “Activism” from a conservative point of view is advancing a particular ideological agenda untethered (or very thinly grounded) to any constitutional bases.
July 14th, 2009 at 5:22 pm
@17 kth said: “The only neutral definition of activism vs restraint possible is the willingness or unwillingness of judges or courts to overturn duly enacted legislation. Any other definition is special pleading for a particular set of policy outcomes.”
I believe (i) judicial activism is wider than that and (ii) judicial activism is wholly with the traditions and regular functions of the American legal system.
For example: Kelo v New Haven was a good example of judicial restraint – the court relied on existing case law AND deferred to the legislative ‘wisdom’ (without much reason, IMO) of the local government units.
And Griswald was judicial activism not because it held a law invalid, but because it read the Constitution as a “living document” and found within the “penumbra” of specifically named rights the right of privacy.
Judging is far more complex than the Republicans are making it out to be in the Sotomayor hearings.
July 14th, 2009 at 6:45 pm
I read the column “It’s All About Race” in the Daily Beast, and I fully agree. There is a way to unmask the fraud behind the claims of the right wing, including members of the judiciary, like Roberts, Thomas and Alito, that what they really seek is a society where merit is the sole determiner of oppurtunity. The civil rights laws specifically preclude race or gender as basis for discrimination, and yet most institutions of higher learning are currently using a form of afirmative action to ensure that their student bodies have some balance between male and female populations. Boys have been lagging behind girls academically for years now…..if schools weren’t actively using a lower set of criteria to allow them to admit more males, if admissions were truly based on merit alone, skimming the top level of applicants for entry, most colleges populations would soon approach two-thirds female, one-third male. That, of course, wouldn’t make girls too happy, and if the girls aren’t happy, their parents wouldn’t be too happy…..so there isn’t a lot of self-righteous huffing and puffing about that particular form of preferential treatment based on gender.
All that’s needed is a female plaintiff who can prove that a public university has apparently applied a lower set of criteria to admit a male student to a school which denied her admission, and we’d be off to the races. If the standard is truly, purely merit, the courts would have to allow that lower admission standards for males constitute discrimination, and are no different than affirmative action for minortities. If the idea of having a lot of colleges end up with an overwhelming preponderance of female students makes conservatives sqeamish, then it wil be obvious that, merit notwithstanding, this was never just about preferential treatnent, but was always really about who got it.