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Revision as of 18:07, 3 November 2005

General observation

It seems that many people criticizing this article would prefer it be replaced with a disclaimer stating, "Judicial activism doesn't exist and thus we don't need to worry about it." That seems to be the meaning behind the call for an "expert" to intervene at the top of the article; presumably this expert will declare, with the full force of his authority, "Children, all of this arguing is silly. As anyone well-versed in The Law can tell you, there is no such thing as judicial activism. So be off!"

In reality, judcial activism has been the main theme underlying the work of constitutional scholars for a long time. See the work of Alexander Bickel and John Hart Ely, the two most important conlaw scholars of the past half-century. It is also the main theme of most current debate over the judiciary. So let's quit this facetious definitional debate; no expert is going to come from the sky to save the critics of this article. As Karl Marx wrote, "Philosophy comes into the world amidst the cries of its enemies, who betray their weakness with wild shouts for help against the fiery ardor of ideas."

Wasn't it Oscar Wilde who said that? --Interiot 03:03, 17 October 2005 (UTC)

Other

I reverted "not to rule as constrained by law" as this is vague and POV. Likewise "and not as they are supposed to do" is certainly POV. The link to judicial constraint does not exist, so it was reverted as well. Finally, the reference to liberal/left-wing judges being judicial activists was removed because this is addressed in the "Criteria for Accusation". In addition, the "higher-tendency" of liberal judges to rule in this way was unsupported by empirical evidence (see "Criteria for Accusation"). Queerudite 03:59, 30 Jan 2005 (UTC)

"a common-sense reading of the law" is ambiguous and subject to a great deal of debate. I replaced this with a section on the "Criteria for Accusation" Me

I think judicial activism means judges changing the law, overturning laws, or introducing legal principles -- in such a way that usurps the role of Congress or state legislatures; or that takes the place of Constitutional Amendments.

I agree. I expanded the definition to include this along with other criteria. Me

Sometimes I agree with the results, like the Miranda Law (oops, not really a law, is it?) intended to prevent cops from sweating out false confessions from innocent suspects. But I think our nation (America) would be stronger if a bill were signed into law -- instead of a Supreme Court ruling establishing it.

My favored approach is: Congress or legislature makes the law, executive branch or governor enforces it, courts decide guilty or innocent.

Could someone finish this article, please? --Uncle Ed 18:18, 22 Jul 2004 (UTC)

There is the point that the laws often contradict each other, or contradict the federal or state constitutions. I suspect a lot of accusations of judicial activism come from cases where there's just such a real or apparent contradiction. Evercat 22:51, 22 Jul 2004 (UTC)

And I believe that many cases of judicial activism come from cases where there was NO SUCH contradiction, but someone simply decideded they didn't LIKE the law any more. Rather than seeking to change the law by passing a new one (majority vote and executive signs it, or 2/3 vote), it's much easier to get a pliant judge to issue a ruling.

The point is not whether this is right or wrong, since the W is not supposed to 'judge' this.

I know, but if you're allowed to state your opinion above then so am I. :-) Evercat 20:55, 23 Jul 2004 (UTC)

My editorial concern is how to define and descrike judicial activism in the article. --Uncle Ed 17:58, 23 Jul 2004 (UTC)

Internationalism

Currently, everything after the first graf is U.S.-specific. Can someone please add some text relevant to the oher countries mentioned in the intro, or else make it clear that this is an article about U.S. politics? 18.26.0.18 03:06, 19 Feb 2005 (UTC)

Neutrality

Sections stating "fits definition" and "does not fit" are not neutral nor can they be. One cannot give a neutral list of cases which in fact constitute acts of judicial activism. Such is merely a matter of bitterly contested opinion. The term is derogatory in nature and so its applicaton is often resisted by those agreeing with a judicial opinion, either in outcome or reasoning. Those sections should be deleted.

The section on Roper should be deleted for similar reasons. The case does not illustrate "both sides" of the judicial activism debate. It is not as if the majority is defending judicial activism and the minority is attacking it. The majority would most likely shun the term altogether given its political and derrogatory nature. Whether majority engaged in judicial activism is an outsiders view, not appropriate for debate on a W page.RyanKoppelman 13:53, 30 Mar 2005 (UTC)

Then put the other side's case. It should stay because this is a key case that illustrates the problems that critics have with what they call judicial supremacy. 203.213.77.138 03:16, 6 Apr 2005 (UTC)

Perhaps the best definition of judicial activism, as it is often used, is a legal opinion not decided on the basis of strict contstruction of a constitution or statute. But, then the list of cases would be long indeed. Strict construction has not been the predominant view in American jurisprudence for the last couple centuries. The intellectual value of this imprecise political term is limited and its value on W is limited too. The best this article can hope for is some measure of objectivity. -- RyanKoppelman 13:53, 30 Mar 2005 (UTC)

Antonin Scalia prefers "original meaning" to "strict construction", and gives the example, "Do you use a cane?" means "Do you walk with a cane?" which is not according to the strict construction. The article pointed out that many of the criticised decisions have nothing to do with the original meaning of the constition, and some don't even pretend to, e.g. the Roper v Simmons where other countries and "evolving standards of decency" were appealed to.203.213.77.138 03:16, 6 Apr 2005 (UTC)

Shit. Look at the books listed: "The Supremacists: The Tyranny Of Judges And How To Stop It" and "Men In Black: How the Supreme Court Is Destroying America" That's neutral.--RyanKoppelman 13:58, 30 Mar 2005 (UTC)

In a book and links list, naturally there will be partisan things. Many articles have list subdivisions of pro and con. 203.213.77.138 03:16, 6 Apr 2005 (UTC)

Whom in GOD"S NAME inserted "American corporate media" into this article? That's blatantly out of line and I'm editing it.

If I may make a general comment about the page, I must say not only as a law student, but as an anglophone, this has to be one of the most disorganised, poorly written pages I've encountered on Misplaced Pages. I agree that there has to be more written on international charges of judicial activism, and some blatantly biased phrases must be done away with.

Is it neutral now?

I made some changes, and I hope it's more neutral now. The article still sort of sucks, but can we at least change the red sign to a ((cleanup)) banner? (retroactive signing: Dave (talk))

No one has complained, and it's been about 5 days, so I'm going to do it. Dave (talk) 14:31, Apr 22, 2005 (UTC)

"related rulings"

I removed

Roper v. Simmons (2005) ruled that executing a minor was "now" unconstitutional, even if it had not been "until recently".

because:

1. it's POV in its wording
2. It's better if we don't list "activist" cases, as there is no consensus about which cases are activist. See the Neutrality discussion above on this page.

Dave (talk) 04:17, May 13, 2005 (UTC)

Jurisdiction

"Jurisdiction" generally refers to the scope of a court's power to hear and decide cases and to issue orders. In general, criticism for judicial activism does not implicate jurisdiction per se -- the critic does not maintain that the case was not properly before the court for decision -- but charges that the basis for the judge or judges' decision was illegitimate. Judge Magney 16:46, 12 July 2005 (UTC)

It follows that if a court makes a decision without jurisdiction, its basis is "illegitimate." Judicial activism is essentially used to imply that a court has gone out of its way to reach a desired end. Jurisdiction in this regard is relelvant, especially if a court first holds it lacks jurisdiction but then decides a question anyway. Unended 14:02, July 23, 2005 (UTC)

Roe paragraph removed

The "penumbra" metaphor is not original to Roe, but is found in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Here is a link to a text of that opinion:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479

Since I am not sure whether a discussion of Roe or the "penumbra" metaphor is more important to you, I deleted the discussion entirely so you have a clean slate to work with at your convenience. Judge Magney 01:51, 14 July 2005 (UTC)

You are right. In my hast, I thought Griswald had come after Roe and didn't check which was the origin. The origin seems less important than the reliance upon it. I think Roe and Griswald's discussion of the penumbra fits in here some how. Strict constructionists despise the penumbra theory. It has a role in this debate. Hopefully, in the next couples days or weeks, I work together something more true to the cases.--RyanKoppelman 17:33, 14 July 2005 (UTC)

Bush v. Gore

Removed the following: "Defenders of SCOTUS' ruling in this case claim they merely overturned an activist interpretation of the state constitution by the Florida Supreme Court." Federal courts have no authority over state court interpretations of state law. See the Erie doctrine. The notion that a federal court can intervene to upset the highest state court's interpretation of state law is an obsene notion. Federal courts are only empowered to interpret federal law. They can apply state law, in diversity jurisidiction suits, but they must apply it faithfully in accordance with how the highest state courts have interpreted it. This is why the practice of certifying state law questions from federal courts to high state courts exists. Unended 14:00, July 23, 2005 (UTC)

There are those who would say the Erie doctrine was activist, since it overturned 150 years of precedent and disrupted the Hamiltonian view of the role of the federal judiciary without basis in the text of the constitution. Anyway, Judge Posner defends Bush v. Gore on these grounds, so just because you think Posner is wrong is a reason to write (and cite to) a counterargument, rather than a reason to exclude the position from the article. -- FRCP11 08:40, 3 October 2005 (UTC)

Three-part definition

I put the three-part definition on the main page. I hope some form of it stays, because it's (as stated) simple and it's interesting. Anyway, since I'm not a legal expert, I wanted to back it up a little more here, in hopes that it will stay on the page. I originally heard the definition on this Chicago NPR program, "Odyssey", at September 13, 2005, 12:28pm.. The speakers are David Strauss (Harry N. Wyatt Professor of Law, University of Chicago) and Maxwell Stearns (Professor of Law, George Mason University). Here are their relevant comments:

David Strauss (28:07): I do think these terms are basically... "originalism" for the most part, "strict constructionism" certainly, and "judicial activism"... are terms that get thrown around too much, and if they're to be used, they have to be given clearer meanings. Let's take judicial activism, for example. It can mean, so far as I can tell, one of three things. It can mean a judge who is very willing to strike down laws enacted by congress and the state legislatures; it can mean a jugde who is willing to declare laws unconstitutional. If that's the definition of judicial activism, then the most prominent activists today are conservative judges who are interested in striking down affirmative action laws, and campaign finance laws, and laws regulating property. Activism might also mean someone who departs from precedent, as Max suggested. And again, today it happens that the judges departing from precedent are conservative judges; that hasn't always been the case, there were liberals a generation or two ago. Or activism might simply be an epithet that someone uses to mean "well, you're departing from what the constitution should be; you're interpretting it in a way that shouldn't be interpretted, and that's why you're an activist", in which case it really is just synonomous with saying "I disagree with you, but I don't want to stop with saying I disagree with you, I want to say you're acting lawlessly".

Maxwell Stearns (30:35): ... I fully agree with David's assessment of the three possible meanings one could ascribe to "Judicial Activism".

--Interiot 00:07, 14 September 2005 (UTC)

Sorry for the revert of this edit, I didn't see where that was going, and "more defined" doesn't seem to make gramatical sense, especially with the next paragraph's "more broadly". Feel free to re-revert if you explain the intent of the edit, or otherwise make more changes so those couple of paragraphs are coherent. --Interiot 22:28, 1 October 2005 (UTC)

Regarding the 4th rule of "In the U.S., exceeding the scope of the authority of the judicial branch's role in the Constitution's scheme of separation of powers", that seems to encompass the other three rules, and shouldn't really be placed alongside the three rules. If kept, it should probably be moved up into the summary next to "Broadly speaking, judicial activism is the act of replacing an impartial interpretation of existing law with the judge's personal feelings about what the law should be.", or otherwise presented as being the highest-level one-line definition. --Interiot 03:30, 3 October 2005 (UTC)

I have a great deal of respect for David Strauss, who deserves his own wikipedia entry. I disagree with him here, though. (1) What the text of the article says is not an effective description of what Strauss says, and (2) Strauss's range of possible definitions of judicial activism is a POV range, because it pretends that judicial activism is indefinable and thus that some liberal judges aren't guilty of it. Strauss is absolutely correct that the term judicial activism is thrown around too loosely and too often to mean "a decision I don't like," but a number of prominent conservatives--Scalia, Roberts, Easterbrook--have defined judicial activism as a function of acting outside of the judicial power, and that's something distinct from each of the three proposed Strauss definitions: it's both broader and narrower than the first, substantially broader than the second, and substantially narrower than the third. Strauss's "definition" is a part of a clever attempt by the liberal wing of academia to defend liberal judicial activism without actually saying that judicial activism is a good thing by making the concept of judicial activism so indeterminate that it's easy to accuse conservative judges of it and thus discredit the whole concept. (Cass Sunstein's recent book and Mark Gewirtz's op-ed is precisely on point.) If the point of the three "rules" is to convey Strauss's views, then it should be clearly stated that this is an attempt to convey Strauss's views, rather than expressed as an NPOV set of potential definitions of judicial activism. Like I said, the article needs a lot of work; it doesn't reflect a lot of the academic debate from the last few years. -- FRCP11 08:35, 3 October 2005 (UTC)

I'm not a legal expert (nor even a decent armchair legal expert). Although the quote was from NPR (and thus not necessarily something that everyone would agree with), it was still much more narrow and precise than what came before. I don't know enough about the topic to make it NPOV really, I just thought that the article definitely needed to go more in the direction of academic precision. I sincerely hope that people with more academic knowledge on this article contribute to it as much as possible, so as to steer this article firmly in that direction. --Interiot 17:32, 3 October 2005 (UTC)

Rewrite and expert tags

No offense to the number of editors who have made noble and good-faith efforts at trying to tackle this complex and controversial subject, but, as I discuss above, the whole thing needs to be rewritten. Unfortunately I don't have time, so I'm simply adding a tag and listing the problems here. There's no acknowledgement that there's an intellectually coherent theory of judicial activism; the opening-paragraph claim "Because there is no consensus or legal definition for what constitutes proper jurisprudence and what does not, there is no practical means of differentiating between judicial activism and otherwise appropriate judgement" is a non sequitur; there's no distinction between the academic and political uses of the term; there's no discussion of the fact that the "indeterminacy" claim is a distinctly Left position; the criticism of the Sunstein redefinition was deleted, creating additional POV problems; the international stuff is added haphazardly; there should be a discussion of regulation through litigation; the current organization, even within sections, isn't readable and doesn't flow; the "see also"s are littered with irrelevancies (sua sponte?!). It's not meant as an insult that I believe that this article is so problematic as it currently stands; there are academics, such as Sunstein, who are actively trying to confuse the issue. The University of Colorado Law School did a symposium on the subject a couple of years ago, which was published in their law review; that's probably a good place to start thinking about the competing views, as well as Sunstein's "Radicals in Robes" and the criticisms of that book. -- FRCP11 04:40, 4 October 2005 (UTC)

Furthermore, the new high school Lincoln-Douglas debate topic deals with judicial activism ,adn as the page stands now, it is not a vlid resource for debate students who need reliable sources for a definition and an explanation of what judicial activism IS.

PS -- I don't know how to do indents, so if somebody wants to edit this and indent my response, I give such permission.

--Unregistered

Dear FRCP, (the "CP" undoubtedly standing for "Communist Party", and the FR for "French")

I agree with most of what you've written here. I respect you for standing up against liberal obfustication on this issue (that being said, we all know that theoretical left-liberalism is dead, and especially that theoretical judicial liberalism is dead, so there is no real dispute here). One interesting direction this article could take is listing all of the Justices stating their own commitment to judicial restraint. Justice Stevens has explicitly averred his belief in judicial restraint in opinions several times; Justice Ginsburg has done so in her off-the-Court writings; Breyer does so in his writings as well (pledging a commitment to some form of Ely's "Democracy and Distrust" theory); Souter explicitly acknowledged his commitment to judicial restraint in his opinions in Washington v. Glucksberg ("We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred.") and Smith v. Doe (" What tips the scale for me is the presumption of constitutionality normally accorded a State’s law."). The only justice I know of who explicitly defended judicial activism was Justice Harry Blackmun in his later years (see his dissent in DeShaney v. Winnebago County, for example), and this was only after he become single-mindedly committed to Roe v. Wade (in his earlier years, of course, he explicitly disavowed judicial activism, see his dissentign opinion in Furman v. Georgia).

But I must take issue with what you wrote on my anon. talk page. I had no idea of the rule that comments must be placed at the bottom of the page. I'm too busy to read through all of this discussion anyways. And how dare you suggest I should be held to some type of moral standard, and be bound by the rules that bind others? I am not an automaton (as much as I may seem so on the computer), I correspond to an actual human being. And anyways any type of morals-based thinking is a form of slavery, as Nietzsche has shown. So don't explain to me what I 'should' do (I'm being facetious here, don't take offense).

And furthermore I think no one should have a username; it makes it more difficult to edit and easier to get blocked arbitrarily. Unfair criticism and anger, inevitable in any major editing, will stick to the userpage and can't be unstuck because of the royal perogatives of the admins, who must paternalistically preserve everyone's talk page. I might as well be anonymous by going with an IP address as opposed to some concocted username.

--Anonymous

Small Addition

I added an excerpt from Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc. so that a simple definition to this complex topic may be found by those looking for one.

--Anonymous