Skip to main content

View Diary: A Little Reminder About 'Judicial Activism' (172 comments)

Comment Preferences

  •  Well... (0+ / 0-)

    When it's typically used in MSM I'm not sure I've ever heard it defined.  The stats are still rather interesting.  Perhaps irrelevant in the context you are describing where things are clearly defined between two parties, but not totally irrelevant, I think, to the general discussion of 'legislating from the bench' and being a 'judicial activist' and whatever the hell all that means.

    •  Fair. (0+ / 0-)

      I'll revise the original statement:  The numbers are indeed relevant to point out just how bogus the term "judicial activism" is.

      So long as we recognize that the numbers paint a very narrow story (we don't know the statutes in question, we aren't addressing the proportion of S.C. cases that involve statutes, etc.) and that there is nothing wrong with striking down laws per se--of course, everything depends on what the laws actually are.

      •  I agree with that. n/t (0+ / 0-)
      •  They're not at all relevant. (1+ / 0-)
        Recommended by:
        PrnCaspian3

        Your original comment was correct.  As typically used, "activism" means divergence from "strict constructionism," which means no more and no less than "striking a law when a conservative believes a law ought to be struck and upholding when a conservative believes it ought to be."

        eg, "activism" is the negative space of "strict constructionism."  

        It doesn't have anything at all to do w/ a willinginess to strike laws.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Wed May 27, 2009 at 01:56:30 PM PDT

        [ Parent ]

        •  How about (0+ / 0-)

          They are relevant to show how bogus the notion of "judicial activism" as an insult is, when mindlessly throwing around that phrase is the extent of their argument?  While yes, 'activism' does mean divergence from strict constructionism, conservatives also juxtapose activism against their supposedly proper model of "judicial restraint".  

          Except...numbers like this support the case that conservative 'judicial restraint' is non-existent.  Conservatives do not hesitate to take an activist approach to suit their model of strict constructionism--actively overturning Congressional laws, and actively seeking to overturn precedent like Roe v. Wade.  Let's not forget Bush v. Gore either.  The point is, conservatives are indeed activists when they want to be, while they hurl around the football of "judicial activism" as an insult.

          Instead of "activism" as taking the negative space of "strict constructionism", given that term's pervasive misuse, I prefer referring to liberals' approach as the "Living Constitution" or, simply, a broad interpretation of that document.  

          •  about that (0+ / 0-)

            actively overturning Congressional laws

            If the law is unconstitutional, then it is not activist to overturn it.  Imagine congress passed a law making Roman Catholicism the official state religion. It would be activist to allow it to stand since that would involve invalidating part of the first ammendment.

            Likewise, if a precedent is faulty it is not activist to review and overturn it. To continue the example...

            If an activist court ruling let that RC law stand and then a later court overturned that ruling, returning to a correct understanding of the 1st ammendment, that would likewise not be activist.

            iow, correct rulings are NOT activist

        •  Except they ae all to willing (0+ / 0-)

          as in the case of Kelo and the gun decision in DC to ignore even that. So, your argument is fairly weak. What they mean is that they support something based on their beliefs. It certainly does not explain constructions of federal law by the court that does not touch on constitutional law, but they nevertheless interpret according to conservative frames in areas like securities law, discrimination cases, etc.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site