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What do you think “judicial activism” means? I think that some people get this notion wrong. It does not simply mean the failure to follow stare decisis, which is the principle that courts follow established precedent that has been set in holdings of previous cases involving the same or similar legal issues. Rather, judicial activism refers to reasons why judges interpret legal issues as they do. In some cases, judges will fail to follow the laws of the legislative branch because of their personal feelings, or because they feel that the people want a certain outcome in a certain case or line of cases. For instance, if the Supreme Court says that it is following the trend in the behavior of state legislatures, this can be judicial activism; or, if judges ignore a clear legislative directive to declare something not in accord with the U.S. or state constitution, this is a red flag that judicial activism is going on. We especially see this kind of thing done particularly when it involves legal issues surrounding sexual matters, such as abortion, homosexual laws, birth control, etc. So what do you all think of this? Do you agree with my assessment of judicial activism or not?
I think judicial activism is basically where a judge deviates away from set precedents and concrete language in the Constitution. When justices find gray areas or penumbras and make case law from personal judgment rather than defering to the legislatures to fill in the gray areas, I find this to be judicial activism. It is not the judge's place to create law where no law exists, it is his duty to send the case back to the legislatures with the summary judgment that a gap in the law exists and should be remedied. After the remedy is legislated, the justice can re-visit the case with a better hope of resolving the case itself.
I think “judicial activism” is a code word for “liberal judges” by anti-abortionists. Pretty much that's what it is.IMO a better way to describe federal judges is in how narrowly or widely they interpret the constitution and whether they are "strict constructionists" or believe in a "living, breathing" constitution.
I think that “judicial activism” is a code word for “liberal judges”, but not simply by anti-abortionists. I think that this code word has come into vogue since judges appear to violate the doctrine of separation of powers. In such cases, the “will of the people” is essentially thwarted because of the personal opinion of a judge or group of judges, or the Constitution is ignored as the sole authority and an appeal is made to extra-Constitutional sources (e.g. foreign law). There was a case that went to the Supreme Court a few years ago which illustrates the concept of judicial activism outside an abortion context. The case involved the issue of whether or not a mentally-retarded criminal could be executed by the government. In its decision against this, the court gave reasons including the fact that so many states had already enacted statutes against this sort of death penalty. I recall Scalia, in the minority, chastising the rest of the court for this decision. Here was a situation where the majority did not look to simply to the Constitution and its meaning to decide the case, but instead looked to what it thought was a "trend in opinion". Whether one agrees with the outcome of the case is beside the point; the Supreme Court is supposed to look to the U.S. Constitution, rather than popular opinion or laws which do not control, to decide its cases. To do otherwise can lead to madness, as our Constitutionally-guaranteed rights start to lose their authority.
I would disagree. Trends in public opinion do matter. What was considered “cruel and unusual” in 1790 is not necessarily the same as now, and that was the point of that decision. The framers left certain things intentionally vague and the amendment process so difficult that so that they intended for it to evolve over time ( (in my opinion). If they wanted it to be “set in stone” they would have made the amendment process a bit easier.
I think that the problem with a “living document” interpretation of the Constitution is that any rights that are supposedly protected by it really are not protected. If what you say is true, then it would be entirely possible for something that was protected in 1790 – such as private property rights – to be entirely unprotected in 2006, if popular opinion or individual judges opine this to be the case. A “living document” Constitution essentially becomes one where the personal opinion of judges becomes the matter of first importance, and the Constitution itself is eventually rendered meaningless. What is interesting is how you and I see the amendment process in two different lights; whereas you say that the difficulty in passing amendments suggests a desire to see the Constitution evolve over time, I see this difficulty as suggestion that the principles of the Constitution do not evolve over time with any ease. I think that the Founders had first hand knowledge of what tyranny could do, and so their intent was to set forth a set of timeless principles which would govern man's actions in the new nation for as long as the nation exists.
There is a difference between principles and law. Principles are foundational and are protected by the Constitution and it would require an amendment to change them. That is at the heart of the debate over Bush's “signing statements” in which he claims to right to ignore any law that he chooses, a reversion to Nixon's statement that “If the President does it, it's not illegal.” The basic rights don't change. Freedom of speech is freedom of speech, freedom of the press is freedom of the press. What changes is the world around us and this requires us to reexamine the meaning of those rights in light of the current situation. An unchanging interpretation of the freedom of the press could very well mean that kiddie porn could be distributed over the internet without penalty, while an unchaning interpretation of freedom of speech could mean that, to use Justice Holmes' example, I could yell “Fire” in a crowded theatre without repurcussions. Societies change, circumstances change, the world changes, and laws must change in response. Even morality changes. Two hundred years ago it was not uncommon for a woman to lose everything if her husband died because it all went to the closest male relative. One hundred fifty years ago we had slavery. Sixty years ago segregation, our version of apartheid, was legal. German POWs could eat in the main dining car, black combat veterans could not. If our Constitution, our laws, should ever become rigidified, out of touch with the real world in which we all live, then it would be time for a Second American Revolution because our entire government would have become the enemy.
