Judicial Activism

by: Les Carpenter
Rational Nation USA
Liberty -vs- Tyranny

 

Definition of Judicial Activism:

USLegal - Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint.

Judicial activism has been a issue of concern going back to Thomas Jefferson.

Our SCOTUS' responsibility is to determine law (legislation) with respect to its constitutionality or lack thereof. There are two primary and differing views held by judicial scholars. One school of thought holds SCJ's (Supreme Court Justices) should show judicial restraint and interpret a laws constitutionality based on the strict wording of the United States Constitution. A more flexible school of thought is that the United States Constitution ought to be considered a living document considered and interpreted against the backdrop of existing political and social realities.

For the record this writer holds with the first field of thought, making me an advocate of strict adherence to the letter of the United States Constitution. For the purpose of this posts discussion I consider my views as irrelevant.

If one is to discuss judicial activism, or more specifically the degree to which it has exited over time, one must accept the fact that judicial activism can have many faces. This is to say SCJ's of both political ideologies (liberal and conservative) fall prey to the exercise of judicial activism to advance their views of legal. political, and social justice.

I remember President Reagan's nomination of Robert Bork to the Supreme Court and how the liberals howled at the moon over the possibility simply because he was a strict constructionist. As we know he ultimately lost the appointment over purely partisan considerations, irrespective of his ultimate qualifications. By the same token I recall the baying of conservatives over the nomination of Ginsberg and Sotomayor, both who ultimately won seats on the SCOTUS. IMO this simply confirms that in the s3lection of a SCJ politicians are driven more by partisan ideology than purely objective considerations as to a nominees ability to render impartial judgement.

Judicial activism is really a subjective determination. Which leads to the heart of this post. In the minds of some the Robert Court is embarking on a new era of judicial activism, and this belief is shared by President Reagan's solicitor general Charles Fried.

With the growing trend in social conservative political activism it appears the SCOTUS at the very least in more comfortable in taking a more active role in legislating from the bench.

WASHINGTON — When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan's solicitor general gave him a warm endorsement as a "careful, modest" judge.

"He's not a man on a mission," Harvard Law professor Charles Fried testified, adding that Roberts was not likely "to embark on constitutional adventures."

But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns...

After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.

If the court were to invalidate the healthcare law, "It would be more problematic than Bush v. Gore," Fried said in an interview, referring to the case that decided the 2000 presidential race. "It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before."

His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today's conservative justices who are more inclined to rein in the government.

At the heart of last week's argument over the healthcare law was a dispute over power. Does Congress or the Supreme Court define the limits of economic regulation?...

The court's leading conservatives objected and spoke of their duty to enforce limits set by the Constitution. If the government can force people to enter the market and buy insurance, Justice Antonin Scalia asked, "what's left?"

"The federal government is not supposed to be a government that has all powers," he said.

Are "there any limits" on Congress if this stands? asked Justice Anthony M. Kennedy. Roberts said "all bets are off" if the government can regulate an industry by forcing people to buy a private product.


Pepperdine law professor Douglas W. Kmiec, another top Justice Department lawyer under Reagan, said he hoped the justices would "come to their senses" and uphold the law as a reasonable regulation of interstate commerce...

In November, Judge Laurence H. Silberman, a Reagan appointee to the U.S. Court of Appeals in Washington and long a leader of the conservative legal movement, wrote an opinion upholding the healthcare law on the grounds that Congress has the power "to forge national solutions to national problems."

The Reagan-era lawyers sought to rein in what they saw as liberal judicial activism. For example, Fried and Kmiec thought the Roe vs. Wade ruling that struck down the state abortion laws was a mistake and should be overturned. However, they thought the high court should stand back and defer to Congress on matters of business and economic regulation.

But Congress is not held in very high regard by most of the justices. In public and private comments, they often speak with disdain of the politicians in the House and Senate. {Full Article Here}

In as much as prior Courts such as the liberal Warren Court were considered to be activist Courts the contention by former Reagan legal advisers as well as liberals that the conservative Roberts Court is embarking on judicial activism has some merit.

If one is critical of judicial activism they must be prepared to be critical of judicial activism regardless of the political flavor of said activism.

On a purely personal note, judicial activism in the pursuit of a strict constructionist view in determining the constitutionality of a law is both proper good.

Via: Memeorandum