fatguyinalittlecoat
Footballguy
Probably among the most "lawmaking" rulings ever.Brown most certainly was an activist ruling.
Probably among the most "lawmaking" rulings ever.Brown most certainly was an activist ruling.
Just because a law is democratically enacted does not mean it is Constitutional. The Constitution says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."I tried to pick a relatively nonpartisan example. I can't agree, even a little bit, that finding that a law exceeds Congress's enumerated constitutional powers (eg, the health care mandate) constitutes legislating from the bench. That type of check and balance on Congress's power is one of the most crucial functions of the judicial branch. Now, reasonable minds can differ on the constitutional issue, but that's a separate issue, at least in my view.
I'm ambivalent about this. On the one hand, it would be nice to have that appointment done with, but on the other: if she feels healthy and sharp, I don't see why the onus is on her to step down so a political party can "protect" her seat. And as others have said, it's unlikely a jurist as liberal as Ginsberg would make it through confirmation process today.I'm very disappointed in Ginsburg for not retiring last year. She'll have done the country a great disservice if a Republican wins.
Is Ginsburg really more liberal than Sotomayor or Kagan? I don't follow many rulings, but on the major controversial ones, they always seem to agree.I'm ambivalent about this. On the one hand, it would be nice to have that appointment done with, but on the other: if she feels healthy and sharp, I don't see why the onus is on her to step down so a political party can "protect" her seat. And as others have said, it's unlikely a jurist as liberal as Ginsberg would make it through confirmation process today.
I think they are pretty similar but Ginsburg had a much more radical resume when she was nominated.Is Ginsburg really more liberal than Sotomayor or Kagan? I don't follow many rulings, but on the major controversial ones, they always seem to agree.
I think I misunderstood your original statement. I took you to be saying that striking down laws is inherently not activist. Striking down laws certainly can be activist, depending on the issue in question and the basis for striking it down. But you're right, judicial activism can occur whether striking down or upholding a particular law.
Agree to disagree, I guess. That "striking down laws" is a common definition of judicial activism (not sure I agree that it's common, btw) doesn't prevent it from being a stupid definition. People using "literally" to mean "figuratively" is also common, and also stupid. If Congress passed a law that Lutheranism was to become the national religion, voting to strike it down wouldn't be activist in the slightest.
If we're looking for decisions that are activist, I would think that Wickard should sit right near the top, and that didn't strike anything down.
I think I misunderstood your original statement. I took you to be saying that striking down laws is inherently not activist. Striking down laws certainly can be activist, depending on the issue in question and the basis for striking it down. But you're right, judicial activism can occur whether striking down or upholding a particular law.
Good thread
That's not cited because it struck down a law, but because it expanded the right to privacy. A non enumerated right springing from the parsing of "liberty"I guess you can argue that it's a ridiculous definition, but it's certainly not an uncommon one. One of the most oft-cited examples of judicial activism is Roe v. Wade, an opinion that struck down a Texas law outlawing abortion.
I disagree with this. I don't see how upholding the will of democratic majorities can ever be activist. It may be wrong. It may be stupid. But its not judicial activism. Judicial activism typically refers to unelected judges overturning majoritarian political decisions. There's nothing "activist" about the courts declining to override the legislature. The courts are quite literally refraining from action.I think I misunderstood your original statement. I took you to be saying that striking down laws is inherently not activist. Striking down laws certainly can be activist, depending on the issue in question and the basis for striking it down. But you're right, judicial activism can occur whether striking down or upholding a particular law.
Judicial review of Congressional laws was not included in the Constitution. It wasn't until the fourth Chief Justice, John Marshall, wrote Marbury that we established Judicial review. So any review of the law is really based upon judicial activism in the first place.Just because a law is democratically enacted does not mean it is Constitutional. The Constitution says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
I can't see how any ruling could be more "contemplated by the Constitution" than those rulings.
I disagree, that's part of the mandate of the Court - to interpret the Constitution. Stare Decisis has its place, but each Justice and each Court is different and none should be entirely beholden to their predecessors.Yeah, when a decision changes the way a Constitutional provision had been interpreted for over 70 years, I'd call it "activist."
Right. It's cited because of the way it struck down a law.That's not cited because it struck down a law, but because it expanded the right to privacy. A non enumerated right springing from the parsing of "liberty"
Catch's definition is probably about what the term should mean.
Interesting. I would have argued that inventing a way to allow a clearly unconstitutional law to stand or inventing a way to strike down a clearly constitutional law would be examples of judicial activism (with "inventing" meaning coming up with an argument that finds little to no support in constitutional text or precedent). But I'll have to chew on your take a bit.I disagree with this. I don't see how upholding the will of democratic majorities can ever be activist. It may be wrong. It may be stupid. But its not judicial activism. Judicial activism typically refers to unelected judges overturning majoritarian political decisions. There's nothing "activist" about the courts declining to override the legislature. The courts are quite literally refraining from action.
I'd be disappointed if Ginsburg timed her retirement based on tribalistic political reasons.I'm very disappointed in Ginsburg for not retiring last year. She'll have done the country a great disservice if a Republican wins.
Silly because it is completely unenforceable, or silly for other reasons?Maurile, your four point plan is completely unenforceable and, in my judgment, just silly.
Even when "electioneering activity" is a euphemism for publishing speech? I think it's pretty clear that the First Amendment is at least implicated...I think Citizen's United is wrongly decided for other reasons. Which is that I think there is nothing in the First Amendment that actually prevents the government from limiting private expenditures on electioneering activity.
That definition is too objective and people would not be able to endlesslyargue about what it means.Judicial review of Congressional laws was not included in the Constitution. It wasn't until the fourth Chief Justice, John Marshall, wrote Marbury that we established Judicial review. So any review of the law is really based upon judicial activism in the first place.
My argument against CU is that freedom of speech was created to protect actual human beings, not the artificial construction of an entity like a corporation.Even when "electioneering activity" is a euphemism for publishing speech? I think it's pretty clear that the First Amendment is at least implicated...
Do you think the government should have succeeded in its attempt to prevent the New York Times from publishing the Pentagon Papers?My argument against CU is that freedom of speech was created to protect actual human beings, not the artificial construction of an entity like a corporation.
It does not mention corporations. It mentions "the press."The First Amendment specifically mentions corporations as having the freedom of speech. It's right there in the plain text.
What else does "The Press" refer to other than an artificial construction comprised of people?
Money isn't speech. That's why limits on campaign contributions are constitutional. Citizens United wasn't about campaign contributions; it was about airing a movie.Can't one argue that, yes, corporations have the right to free speech, and yes, money is free speech, but the state has the right to make rules and regulations regarding elections and this right overrides the above mentioned rights?
What was the reasons the liberal justices were against the decision? Ginsburg shocked me by this, being a former ACLUer.Money isn't speech. That's why limits on campaign contributions are constitutional. Citizens United wasn't about campaign contributions; it was about airing a movie.
No right is absolute, including the right to free speech. But when speech restrictions are based on content (e.g., "You can show a movie about John Malkovich, but not about Hillary Clinton"), there needs to be a really super good reason for the restriction.
Money spent by corporations to support or oppose political candidates has a potentially corrupting influence that detracts from the integrity of the democratic process. (That's my attempt to distill a 90-page dissent into a single sentence.)What was the reasons the liberal justices were against the decision? Ginsburg shocked me by this, being a former ACLUer.
The people (members of the press) working at the NYT had the right to publish the Pentagon Papers at the company they worked for.Do you think the government should have succeeded in its attempt to prevent the New York Times from publishing the Pentagon Papers?
Make an exception for movies.Money isn't speech. That's why limits on campaign contributions are constitutional. Citizens United wasn't about campaign contributions; it was about airing a movie.
No right is absolute, including the right to free speech. But when speech restrictions are based on content (e.g., "You can show a movie about John Malkovich, but not about Hillary Clinton"), there needs to be a really super good reason for the restriction.
Why is there a line there? Is the press not influencing elections with their Opinion/Editorial page? Is Rush Limbaugh not influencing elections with his radio show? Ditto Sean Hannity, Bill O'Reilly, Rachel Maddow, etc. and their TV shows?The people (members of the press) working at the NYT had the right to publish the Pentagon Papers at the company they worked for.
There is a line between the freedom of speech of the press and that of a corporation to spend unlimited amounts of money to influence elections.
I still find it hard to believe someone who values free speech as much as someone who was an ACLU lawyer would be compelled by that. I would have bet large amounts of money she was going to join the conservatives on that one.Money spent by corporations to support or oppose political candidates has a potentially corrupting influence that detracts from the integrity of the democratic process. (That's my attempt to distill a 90-page dissent into a single sentence.)
Who would watch a channel that was just a 24 hour campaign ad?Why is there a line there? Is the press not influencing elections with their Opinion/Editorial page? Is Rush Limbaugh not influencing elections with his radio show? Ditto Sean Hannity, Bill O'Reilly, Rachel Maddow, etc. and their TV shows?
Or, put another way, if Microsoft wanted to influence an election, couldn't it simply buy or create a newspaper, TV station, etc. and air pro-whoever shows 24x7?
This is a nice idea, but I think the Republicans and Democrats are essentially playing a prisoners' dilemma on this issue. It would be nice for everybody if both parties behaved non-cynically, in the way you described. But the best of all possible worlds is for your party to play dirty while the other party plays nice. Both parties know this, so they both rush to the gutter.I'd be disappointed if Ginsburg timed her retirement based on tribalistic political reasons.
Here's my four-point plan to depoliticize the judicial appointment process.
1. Presidents should nominate candidates without applying litmus tests on specific issues. It's okay for Presidents to consider whether a prospective nominee's judicial philosophy is consistent with the President's political philosophy -- I'm not saying that a Republican should consider someone like Kagan, or that a Democrat should consider someone like Alito. But that should be the extent of how politics and judicial appointments intersect.
2. Senators should vote to confirm or reject a nominee based only on the nominee's competence and integrity, without regard to whether her judicial philosophy is consistent with their political philosophies. It is appropriate for Republicans to confirm someone like Kagan and for Democrats to confirm someone like Alito. (If a nominee's substantive record or philosophy are way outside the mainstream, I'd say that a "no" vote can be justified based on concerns about her competence.)
3. Judges should try to get the legally correct answers in the cases before them, without regard to whether the legally correct answer is more favorable to the Red Tribe or the Blue Tribe.
4. In no case should people play around with timing merely to advance the interests one tribe or another. If a Justice passes away in January when the sitting President has just a few days before the next President is sworn in, the President should not skip over the normal vetting process to nominate someone immediately. (More relevant to the current situation, he also should not take advantage of a short Congressional recess merely to evade the normal confirmation process.) The Senate should not filibuster or delay the confirmation process for any reason, especially not because they hope that upcoming election results will favor their tribe. Justices should retire when they're no longer fit for the job, or when they get bored with it, without regard to whether the timing of their retirement will favor one tribe or the other. (Same with death.)
Anybody have current ratings for Fox and MSNBC?Who would watch a channel that was just a 24 hour campaign ad?
Well, I was going to reply, but IvanK already beat me to the joke.Who would watch a channel that was just a 24 hour campaign ad?
The press supposed to be unbiased.Why is there a line there? Is the press not influencing elections with their Opinion/Editorial page? Is Rush Limbaugh not influencing elections with his radio show? Ditto Sean Hannity, Bill O'Reilly, Rachel Maddow, etc. and their TV shows?
Or, put another way, if Microsoft wanted to influence an election, couldn't it simply buy or create a newspaper, TV station, etc. and air pro-whoever shows 24x7?
Good and Nielsen-challenged.Anybody have current ratings for Fox and MSNBC?
Perhaps the press is supposed to be unbiased, although I think you'd have a hard time arguing it ever was unbiased, even at the time the Bill of Rights was created. It's certainly not unbiased now. Not to mention, can you even define "the press" in the internet era? Is every blogger "the press"? How about every Facebook page?The press supposed to be unbiased.
In the case of radio and cable TV infotainment, I agree corporations should be allowed to create any show they want but that's much more difficult than directly donating money to a campaign.
Silly because it disregards everything about human nature.Silly because it is completely unenforceable, or silly for other reasons?
(There are a lot of unenforceable traditions of professionalism in the law that I think are non-silly.)
Interesting. So in a hypothetical situation, if a state completely banned abortions, and an appellate court upheld the ban by attempting to distinguish Roe and Casey, you wouldn't consider that activist?I disagree with this. I don't see how upholding the will of democratic majorities can ever be activist. It may be wrong. It may be stupid. But its not judicial activism. Judicial activism typically refers to unelected judges overturning majoritarian political decisions. There's nothing "activist" about the courts declining to override the legislature. The courts are quite literally refraining from action.
True, but doesn't believe there's no unofficial communication going on between campaigns and Super PACs?Even today, it remains illegal for corporations to donate directly to campaigns.
Correct. I'd consider it wrongly decided. I might consider it politically motivated or disingenuous. But I don't think it's activist as I understand that term. It would just be a ####ty decision for another reason.Interesting. So in a hypothetical situation, if a state completely banned abortions, and an appellate court upheld the ban by attempting to distinguish Roe and Casey, you wouldn't consider that activist?