Whims of Judges

Greg discussed on the radio show yesterday the issues raised in the Nova program "Judgment Day" with Dr. Steve Meyer from the Discovery Institute, which has done as much as any organization to advance the theory of Intelligent Design.  The program documented and analyzed the trial about the Dover, PA school board policy that was ultimately rejected.

I watched the program and read the transcript and one thing caught my eye.  I think three times the ACLU lawyer involved in the case said that he'd worried about the hearing they might get from the judge who was a President George H.W. Bush appointee.  He expected judicial activism from this judge because, I believe, he welcomes judicial activism in many cases, cases where he wants a particular outcome and hopes the judge will ensure it despite the reading of the law. 

This is a very different philosophy of law.  I'm obviously not a law expert, but judicial activism is part and parcel with a living document view of the law.  It was curious to me that an ACLU lawyer would probably welcome judicial activism in some cased, but was worried in this case.  It turned out needlessly.  He expected judicial activism from this judge, guided by the politics of the president who appointed him, because that's his philosophy of law.  And that's the liability of the living document view.  It's only when we expect and encourage judges to interpret the law as written, not as it should be (that's the job of legislator's) that we don't need to worry about the whims and personal views of judges.

Comments

[alan aronson]

"This is a very different philosophy of law. I'm obviously not a law expert, but judicial activism is part and parcel with a living document view of the law."

Probably should have stopped with the first clause of the second sentence. Actually one doesn't need to be an "expert" but one does need to have a view of the legal process that somewhat transcends the limitations of political ideology. A couple of thoughts here:

Any lawyer with a politically charged case who is appearing before any judge is going to have concerns about the views of the judge. We should also bear in mind that the judge was the trier of fact in this case, not an appeals court judge.

Like the phrase "strict constructionist", "judicial activism" is an often useless term in any sense other than being an epithet applied to decisions with which one disagrees. Tying it to a particular method of constitutional interpretation is simply not justified as my references will demonstrate. There was a recent interesting discussion on judicial activism on the legal blogs.

Here is an article by Miles and Sunstein pointing out that Justice Thomas is the most activist.

http://www.latimes.com/news/opinion/la-oe-sunstein22oct22,0,5512088.story?coll=la-opinion-rightrail

A discussion on the Volokh Conspiracy:

http://volokh.com/posts/chain_1193244832.shtml

Jack Balkin has his contributions with some useful links:

http://balkin.blogspot.com/2004_02_29_balkin_archive.html

Our Libertarian friends at Cato and Reason also weigh in:

"Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government."

http://www.reason.com/news/show/32306.html

"Conservatives have long attacked judicial activism; more recently liberals have joined the chorus. Now that the welfare state and other cherished policy objectives are enshrined in law, many liberals heed Justice Stephen Breyer's call for "judicial modesty." The liberals' newfound self-restraint permeated the Supreme Court confirmation hearings of John Roberts and Samuel Alito, who were accused of predilections toward conservative judicial activism."

http://www.cato.org/pub_display.php?pub_id=8168

We should also not forget that the most politically decided case in our history was Bush v. Gore, hardly a liberal decision.

[William Wilcox]

A most interesting article in the Dec. 2007 issue of First Things, "The Curious Case of Free Exercise" by Diarmuid F. O'Scannlain, (judge, U.S. Circuit Court of Appeals for the Ninth Circuit). Unfortunately not available yet without a subscription. So what are you waiting for?! :)

The argument is too detailed for me to present here but he concludes: "The future of religious freedom may now shift to the hands of voters and lawmakers. Although the courts can continue to protect religious practices against laws motivated by discriminatory purposes, or can grant relief when Free Exercise claims are made 'in conjunction with other constitutional protections' most protective action must be legislative."

It presents an interesting interplay between Supreme Court justices, and the activist/constuctionist attitudes often ascribed to them, as they are applied to a number of cases used for precedent in Free Exercise and 14th Amendment questions.

[zzx375]

Why would the ACLU lawyer be concerned regarding the hearing he would receive?

"...There is no inconsistency between principled judicial activism and limited government."

What is pricipled judical activism? Is it different from unprincipled judical activism and plain judicial activism?

[mike christensen]

Jesus is comeing soon

[alan aronson]

Hi Zzx, did you read the article? I think he lays out his case.

This may also help:

" At the federal level, the Constitution ex­plicitly establishes a structure of enumerat­ed congressional powers and expansive in­dividual rights When Congress exceeds its enumerated powers by acting in ways not shown to be truly "necessary and proper" to these enumerated powers, such acts are ultra vires and should not be rec­ognized by courts as law

Congressional acts must therefore be | substantively evaluated by judges to see whether they are in fact within an enumer­ated power. Even if they are, they must be further evaluated and stricken if they vio­late individual rights—for example, by taking property for public use without pay­ing just compensation."

http://randybarnett.com/libertairianview.html

Here is an article by the Judge William referred to.

http://www.open-spaces.com/article-v3n1-oscannlain.php

[alan aronson]

Just found this over at "The Panda's Thumb".

http://scienceblogs.com/dispatches/2007/11/luskin_flogs_the_judicial_acti.php

(copy to here to link)

[Rob]

I teach Constitutional Law at the university level and must say that I fully agree with the first comment posted--Judicial Activism is really code for saying "I disagree with the Court." Professor Thomas Keck has written a book claiming that the Rehnquist Court was the "Most Activist Court in History."

The idea that liberals are activist and conservatives aren't is simply unfounded. All judges are human beings tainted by the effects of sin, thus all have personal views that they bring to their understanding of the law.

Conservative justices, like liberal justices, bring a particular framework to their understanding of the law that is most likely to lead them to their desired outcome. There are exceptions, however, such as Justice Stevens ruling in the medical marijuana case where he stated afterward that he was personally in favor of the idea but upheld federal action against users anyway.
I've yet to hear a conservative say they ruled in a manner that opposed their personal point of view. I think that has something to do with the fact that the policy preferences of conservative judges is more closely aligned with the method of legal interpretation employed than it is for liberal judges.