Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, May 04, 2009

The Activist Judge Canard

Hi Everyone,

I'm wading into LTG's territory here and this is more of me asking him a question than anything...

I've been hearing a lot of Republicans bringing out their usual warnings that Obama better not pick one of those "activist judges."  Leaving aside the likely political irrelevance of Republican concerns in this regard right now, I'm annoyed at this argument for a couple of reasons and I'd like LTG's response to my annoyance.  

First, judges that Republicans wax orgasmic about can be said to be activist as well.  LTG is fond of pointing to Bush v. Gore as a prime example.  I'm sure he can give us more.  So there is some serious hypocrisy at work here.

Second, it seems to me that this activist judge argument builds from a seriously flawed understanding of the role of a judge in a civil law system.  I just heard Orin Hatch say on TV that the role of judges is to interpret the law "as it's actually written" not "legislate from the bench."  Implicit in this assertion is that that judges are only to read the law and decide which law applies.  This is very much the role of judges in code law countries such as France or Italy where judges are viewed as a kind of highly specialized civil servant rather than a legitimately independent branch of government.  By this rule, there would be no constitutional review by the Courts - a corner stone of our modern judicial system.

So LTG, am I on track in my annoyance with these arguments?  Hypocritical and based on a flawed understanding of US judicial practice.


The Law Talking Guy said...

Yes, you are on track. The real origin of the term, as I am sure you know, is in the civil rights movements of the 1950s and 1960s. An "activist" judge was one who overturned Jim Crow precedents, advanced the First Amendment, and invigorated protections for the accused (Gideon, Miranda, etc.), abolished the death penalty, expanded the right of privacy, women's rights, children's rights, and so forth. So a dynamic existed from the 1950s-1980s that pitted "activists" against those who wanted the law to remain how as conservative as it was.

It remains conservative codespeak for all these things, which is why it is used.

You are correct, of course, that reactionary jurists who seek to up-end Warren Court precedents are just as active(ist) as those who established them. It is a canard, and a dangerous one at that. It suggests that conservatives are not engaged in the same sort of judicial decisionmaking as liberals, when they actually are. Conservative activists like Justice Thomas would radically re-write US constitutional law to conform with his (imagination) of how it was in the late 19th century or earlier.

A court that is actually non-activist, deferential to the legislature without regard to ideology, is nowhere to be seen.
American courts, as you point out RBR, conceive of it as their function to scrutinize legislation for its conformity with constitutional principles. Where you want deference to the other branches of government is in the *executive* - the one place that conservatives won't put it.

Raised By Republicans said...

"Where you want deference to the other branches of government is in the *executive* - the one place that conservatives won't put it."

Great point...

Dr. Strangelove said...

The idea of interpreting the law, "as it's actually written," is laughable nonsense. If the law were written such that it covered all cases in perfect clarity without contradiction, there would be no need to "interpret" it at all. Translating the sterile, written law into the messy, living world is really hard. Doing so in a way that is fair and just is even harder.

That's why we have judges. It takes skill to tuck the legal pie crust into the real-world pan. You have to crimp, patch, and stretch the dough to make it fit. Judges are supposed to use a little "bench flour" to add to the law as required. That's their job. That's what precedent and case law are all about.

People joke that accountants can make the numbers say almost anything they want. Well, unfortunately judges do the same thing with the law--whether they realize it or not. That's why we need judges with a broad range of experience who truly understand how their decisions will impact people's lives. That's why we need judges who believe that deepest purpose of law in a democracy is not to restrict people's behavior, but to protect people's freedom.

Raised By Republicans said...

"That's why we need judges who believe that deepest purpose of law in a democracy is not to restrict people's behavior, but to protect people's freedom."

Ah, and here we have the kernel of the other aspect of the ideological dispute. Conservatives think that protecting people's freedom means not interfering with companies' activities or local governments' restrictions on individuals. Liberals think it means not interfering with individual behavior (unless that behavior is deemed sexist, racist or otherwise intolerant) and not interfering with local governments' restrictions on companies' activities.

Dr. Strangelove said...

The screwed up conservative view involves at least three major conceptual errors: (1) mistaking organizations for individuals; (2) mistaking power for freedom; and (3) mistaking restriction for responsibility. Let me explain what I mean by each of these--they are all related.

1. Organizations should have fewer and lesser rights than individuals. Collective action does not represent the will of each individual involved, and need not represent the will of any individual. For example, when a corporation or government speaks on behalf of its membership or constituency, there is always an element of "forced speech" on the part of some of the unwilling members. When one joins an organization, one surrenders some measure of individual freedom in hope of attaining some measure of collective power.

2. Power is not the same as freedom. Freedom is the ability to do as you wish; power is the ability to make others do as you wish. Sometimes this mistake is egregious. It is nonsense to speak of the "freedom" to oppress others, for example, and likewise the "freedom" to live in a society where women must wear veils is not a matter of individual freedom at all. More often, the mistake is subtle since our desires have aspects of both. To address one of the examples you raised, RbR, I would say I believe individuals should be free to make racist or sexist remarks as they please. However, when those remarks are sufficient in volume to create a hostile environment that impairs the ability of others to live or work, it then becomes an issue of an abuse of collective power. It is no longer a matter of individual expression but collective oppression.

3. Freedom from restriction does not mean freedom from responsibility. If a company vandalizes the neighborhood by dumping toxic waste into the reservoir, they harm everyone--and they should be held accountable. Since many of the harms are irreversible, preventive legislation is an acceptable response.

Anyhow, that's how I see it. I think the conservative ideology you described represents a false dichotomy--false in many ways. When you think about what freedom really means, I think much of conservative ideology is revealed for the Orwellian nonsense it really is. Conservatism is essentially a failure to put oneself in other people's shoes.

Raised By Republicans said...

Dr. S. I especially like your 3rd point. The market in fact depends on companies being held responsible for stuff like this. If a company pollutes then that pollution imposes costs on society. If we don't make companies clean up after themselves, then the people who are suffering because of the pollution are essentially being forced - against their will - to pay some of the company's costs themselves. By forcing the company to clean up after itself, we would not be imposing an unfair burden on the company but rather ensuring that the true market cost of the company's actions are paid by the company and only by the company.

USwest said...

I've been reading Audacity of Hope by Obama off and on in the gym. He has a chapter devoted to this question of activist vs. strict constructionists. His point is that the Constitution is really a framework for a national discussion. It does not provide any definitive answers except in a few limited domains, such as procedure. So the irony is that strict constructionists are sort of missing the whole point of the Constitution. The Constitution and it supporting documents (Declaration of Independence, the Federalist Papers, etc) lays out some general values (We hold these truths to be self-evident) that are supposed to guide our law making. Since the founding fathers couldn't come up with definitive answers for many things in their day, how can we be expected to do so today?

When judges issue a ruling, they are offering a commentary on whether something fits within that national value system or not.

People like Thomas and Scalia are the same types that claim the Bible should be taken literally . . . well at least until their daughter turns up gay or pregnant out of wedlock, and suddenly, they have to find some wiggle room to justify their sudden turn of thought. I keep thinking of Sarah Palin who can't even explain her own pregnancy or that of her unwed daughter without using the words "choice" or "decision", but claim to be pro-life.

You can't responsibilty without rights. One begets the other. In otherwords, having rights means you have some control over your actions. Thus, you have responsibility. As a priest once told me, it isn't a sin isn't a sin if you aren't in control of your actions.