Then He Sided With the Majority in the Landmark Case, Criminals' Rights v. Victims' Rights...

Jesse Walker | August 31, 2005

If you've been trying to suss out John Roberts' positions on the country's most contentious issues, you're in luck. Even though he's managed to keep his opinions under wraps on almost every topic, his friends at the Committee for Justice, a group devoted to pushing Republican court nominees, claim to have them in handy talking-points form:

If confirmed, Roberts will benefit the country by not being a judicial activist:

* First and foremost, Roberts won't allow bureaucrats to seize ordinary people's private property.
* He won't redefine traditional marriage.
* He won't strike under God' from the Pledge of Allegiance.
* He won't force the Boy Scouts to hire openly homosexual Scoutmasters.
* He won't favor criminals' rights over victims' rights.
* He won't protect simulated child pornography on the Internet.
* He won't allow Congress to legislate in areas where the Constitution doesn't grant it authority.
* He won't ban the death penalty.
* He won't permit the politicians to regulate what we say about them at election time.
* He won't allow government to treat people differently because of their skin color.
* He won't hamstring the military and intelligence services in the War on Terror.
* He won't block school choice for kids trapped in failing schools.
* He won't eliminate the right to gun ownership.

They don't say how they discerned all this, but hey, they wouldn't put out a press release if it wasn't true. Alert the Senate!

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|8.31.05 @ 4:29PM|#

...Roberts won't allow...

So, er, he's going in, and the other eight are going out? Sort of the drastic reverse of court-packing. ;)

|8.31.05 @ 4:30PM|#

"He won't protect simulated child pornography on the Internet."

I will begin my protest of his nomination immediately.

yellojkt|8.31.05 @ 4:36PM|#

Where does he stand on apple pie and cute puppies?

|8.31.05 @ 4:37PM|#

For those of you keeping score at home

Alliance for Justice = Liberal

Institute for Justice = Libertarian

Committee for Justice = Conservative

Judiciary Committee = Congressional

|8.31.05 @ 4:39PM|#

Wow, I don't know what to say other than what a load of BS. I don't know where they pulled this list from, but it reads like a Republican's wet dream. The only good thing I have to say about Roberts is that at least he isn't Gonzales. He is too conservative for my tastes when it comes to religion, personal rights and womens choice, but too liberal when it comes to constitutional interpretation. I won't even get into the whole "under God" bit.

|8.31.05 @ 4:43PM|#

Joe,
Where is the "Halls of Justice" and "Justice for Justice"?

He won't hamstring the military and intelligence services in the War on Terror.

So, we'll be getting those camps for "terrorists" sooner rather than later?

KipEsquire|8.31.05 @ 4:44PM|#

Joe, you forgot:

Justice League = superheroes.

|8.31.05 @ 4:48PM|#

So the Senate Judiciary Committee probably thinks it is the Justice League.

|8.31.05 @ 4:49PM|#

If they truly believe that about Roberts - they should've kept their mouths shut. Now the left has what it's been looking for - "proof" that Roberts is no more than a right-wing shill.

By my count, "He won't be a judicial activist" is contradicted by the pledges that he will:

Toss out eminent domain takings that have been approved by the executive and legislatures of the states and the federal government;

Strike down acts of Congress that he thinks lack a Constitutional basis, when Congress and the White House have passed them;

Overturn campaign finance legislation passed by Congress and signed by the White House;

Overturn affirmative action laws and regulation promulgated by the states, Congress, and the executive branch;

Strike down regulations that Congress and the states endorse.

Words (like, say, "judicial activist") actually have meanings, you idiots. You don't get to use them to mean exactly the opposite of their definitions because it looks good on a press release.

|8.31.05 @ 4:51PM|#

That last one should read, "...gun regulations that..."

Which is to say, on a list of 13 examples purporting to show that he is not a jucidial activist, 5 of them are pledges that he will be a judicial activist.

|8.31.05 @ 4:53PM|#

Joe- Give it up, man. Judicial activist is one of those phrases that has no meaning. It probably never did have any, except as a handy term of opprobrium. The lack of definintion is precisely why it's so useful to people who spout buzzwords rather than think.

|8.31.05 @ 4:59PM|#

If confirmed, Roberts will benefit the country by not being a judicial activist:

--First and foremost, Roberts won't allow bureaucrats to seize ordinary people's private property.

We don't even have to get into the Kelo Wars! Since the Bill of Rights specifically allows for public use takings with compensation (which is, well, bureaucrats seizing homes), that list falls flat pretty quick.

Eh, people have already replied to this point, but doggone it, I was already going to post when I got pulled away.

|8.31.05 @ 5:00PM|#

And just what is "simulated child pornography"? Is this where a hot blonde dresses up in pigtails and a catholic school girl skirt?

|8.31.05 @ 5:01PM|#

Strike down acts of Congress that he thinks lack a Constitutional basis, when Congress and the White House have passed them;

I've never thought that counted as judicial activism (I always thought it meant serving political principle over Constitutional interpretation), but I'm willing to concede that the term has degraded into meaninglessness in any public-policy discussion, like "terrorism" or "public use". ;)

|8.31.05 @ 5:07PM|#

Judicial activism does, or at least did, have a real meaning: actions taken by the judicial branch that encroach on the real or perceived "turf" of the other branches. It's a neutral term - Roe vs. Wade, Brown vs. Board, Marbury vs. Madison, and the Republican court overturning much of the early New Deal are all examples of judicial activism.

It is only since the Right has taken control of the other two branches that the term has come to mean "any action taken by a court that I don't like." Recall the charges of "judicial activism" hurled at the judge in Florida who refused to depart from the state's laws during the Schiavo controversy.

I expect conservatives to make untrue, inaccurate statements, but this black-is-white shit really burns me up.

|8.31.05 @ 5:11PM|#

Eric,

The decision strking down the Violence Against Women Act was an example of judicial activism. And in that case, O'Connor put Constitutional principle over her political preferences - but she was still engaged in judicial activism.

The opposite of "judicial activism" is "judicial modesty." A modest (or, if you'd like, overly modest) Supreme Court would have deferred to Congress's finding that domestic violence affects interstate commerce. They would have said, "Hey, that's their call."

|8.31.05 @ 5:16PM|#

And just what is "simulated child pornography"? Is this where a hot blonde dresses up in pigtails and a catholic school girl skirt?

Pretty much. There are also programs that can make people in photos appear younger. Hence the "simulated."

|8.31.05 @ 5:26PM|#

Joe,
The job of the SCOTUS is to apply the Constitution to laws passed by Congress. The striking down of the VAWA was the modest course, and well within the scope of the Supremes. To quote a CATO opinion prior to the hearing "Violence against women is a national problem. But that does not make it, under the Constitution, a federal problem."

A true example of judicial activism would have been to uphold this law where no Constitutional backing for it existed. Most of the New Deal laws, Gonzalez v. Raich, etc. are examples of Judicial Activism.

|8.31.05 @ 5:27PM|#

joe,

Am I wrong in assuming that you'd prefer the "hey, that's their call" approach?

Joe:
Judicial activism does, or at least did, have a real meaning: actions taken by the judicial branch that encroach on the real or perceived "turf" of the other branches. It's a neutral term - Roe vs. Wade, Brown vs. Board, Marbury vs. Madison, and the Republican court overturning much of the early New Deal are all examples of judicial activism.

I'm going to have to stop by a library on the way home. Poking Google's definition function gets me the Princeton U WordNet result "an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)", and Black's Law Dictionary doesn't appear to be searchable online.

While I agree with the absurdity of this press release, the term "judicial activism" is, when used by most folks in my experience, meant to mean something like the WordNet definition.

|8.31.05 @ 5:30PM|#

Thanks Shem,
I don't understand that. If my fantasy is to have a blonde dressed as a schoolgirl, or a horse, or a leather-mamma and somebody is of a consentual age and willing to fulfill my fantasy, then GREAT!!

I don't belive that seeing sexual images leads to sexual pretidation any more than seeing images of Hillary Clinton leads one to be a Democrat.

Judicial activism does, or at least did, have a real meaning: actions taken by the judicial branch that encroach on the real or perceived "turf" of the other branches.

well, how you perceive the turf of the other branches has a lot to do with your political affiliation. hence even then the term had something to do with whether or not you liked a decision in question.

|8.31.05 @ 5:33PM|#

Yes, the second-lowest form of humor, but..

For those of you keeping score at home

Alliance for Justice = Liberal

"Are you with the Justice Alliance?"

"No! We're with the Alliance for Justice. We despise the Justice Alliance. Splitters..."

|8.31.05 @ 5:36PM|#

Where does he stand on apple pie and cute puppies?

"Delicious."

...

Yes, I'm bored.

either way, whether or not it was the republicans' fault, the term is bereft of meaning today.

Eric,
My biggest problem with that interpretation is that you end up with laws. And not just any laws, but laws that can change with time. If congress were required to sunset every law, every five years, and renew individual laws, or re-debate and change them, then that would be fantastic. However, if you are going to have "permanent" laws on the books, then the meaning of the laws should also remain static.

The Constitution should be a basic tenet of how the government should work, providing for the rights of the Citizens and that is it. If any law restricts the rights of the citizens in ANY way, it should sunset and have to come up for periodic review so that it may be changed or discarded as seen by the times.

|8.31.05 @ 5:42PM|#

No, Kwix, that is not what the term "judical activism" means. You've drunk a lot of the kool aid. An activist court would have been one that sat back and ok'ed laws passed by Congress, while a modest one would be throwing out passed and signed legislation left and right? Er, no.

BTW, my earlier definition should have included "previous courts." The reason "Brown vs. Board" was activist was partly because the justices just plain ignored precedent. And thank God they did, and displayed some activism.

Steve, sometimes I think the court should be activist and sometimes I think they should be modest. As does everyone else in the country. The problem is, the Right has decided to call modest rulings that it doesn't like "activist," and activist rulings that it likes "modest."

Eric, the currently common use of the term bears no resemblance to its actual meaning. That's my pet peeve here.

|8.31.05 @ 5:46PM|#

I don't belive that seeing sexual images leads to sexual pretidation any more than seeing images of Hillary Clinton leads one to be a Democrat.

What about images of Hillary Clinton in pig tails and a short plaid skirt?

|8.31.05 @ 5:50PM|#

Now, in a lot of cases, the novel "living Constitution" interpretation a court puts on the Constitution can be an act of judicial activism. Congress or a state passes a law similar to many others, based on the then-current consensus on what the Constitution says. Then the law is challenged, and the court rules that it can overturn the law based on some right that it decided emenated from the Constitution. That's activism - the court telling the legislature, "You thought you had the power to decide whether this kosher, but you don't. We do." A modest court would defer to the legislature's judgement.

However, exactly the opposite can be judicial activism, too. If the Supreme Court were to dismiss the existence of the long-respected, solidly-precedented Right to Privacy, and uphold the government's arrest and prosecution of someone for performing an abortion or selling condoms, that would be judicial activism. A modest court, at this point in time, would defer to the law as it is currently understood, not "make up new law," even if the "new" law is, in fact, an old, abandoned interpretation.

|8.31.05 @ 6:05PM|#

What about images of Hillary Clinton in pig tails and a short plaid skirt?

Strangely hot.

theOneState|8.31.05 @ 6:05PM|#

Definitions

(Scroll down to "Definitions And Descriptions Of Judicial Activism". Or, heck, read the whole thing.)

theOneState|8.31.05 @ 6:22PM|#

So it seems the dems have stolen the scare phrase from the repubs who stole it from Arthur Schlesinger Jr.

In any case there's still lots of debate over what the phrase means, so in a way you're all right.

Or wrong.

|8.31.05 @ 7:03PM|#

I have yet to leave my office, but the definitions provided in the article theOneState linked seem much closer to my understanding than the activist/modest dichotomy you use, Joe.

|8.31.05 @ 7:57PM|#

Stevo, that image is worth a pound of saltpeter, Damn You!

|8.31.05 @ 7:58PM|#

Sorry, That should have been directed at Sammy.

|8.31.05 @ 8:04PM|#

joe,

Regarding the neutrality of "judicial activist," it was long gone by the time Bush took office. For instance, he attacked Al Gore in the 2000 debates by claiming he would appoint "activist judges." This was when Clinton was in the White House, you recall.

The term has long been used in conservative circles to refer to a judge who "legislates from the bench," that is, who usurps the legislative branch by making rulings on the basis of considerations outside the Constitution. This is a particular danger given the lack of checks and balances on the Court; a Court of activists, who admit no boundaries to their power, could easily degenerate into a dictatorship of five.

|8.31.05 @ 8:46PM|#

I agree, crimethink. It was a slur long before Bush.

The distinctions John Dean draws seem to strain a little too hard to define all good jurisprudence as non-activist, and define the term purely as a negative.

|9.1.05 @ 12:50AM|#

So, I can think of at least 4 ways to define the term:

1) Stepping on the real or perceived turf of the other branches.

2) Drastic departures from precedent, for good or for ill.

3) Rulings that substitute the judge's preferences for the dictates of the Constitution.

4) (More commonly used than #3) Rulings that substitute the judge's preferences for what the pundit thinks the Constitution should mean.

I prefer to avoid terms that have so many disparate usages. Yes, yes, I know, there's only one RIGHT way to use the term (insert your definition here), but in the interest of clarity I rarely use the phrase "judicial activism", and instead just focus on what I think a court did right or wrong.

|9.1.05 @ 1:25AM|#

All these interest groups (liberal or conservative) spew out crap like this. No big deal.

joe,

Eric, the currently common use of the term bears no resemblance to its actual meaning.

No, you mean your preferred meaning. Phrases and words mean what humans want them to mean (thus the continuing evolution of dictionaries). They're fairly arbitrary that way.

thoreau,

As long as you make clear the sort of use you are putting it to, there should be no problem.

raymond|9.1.05 @ 3:43AM|#

My google alerts on Matthew Limon sent me to this blog with this article on Roberts. I found it interesting.

btw. When I was in Catholic grade school, the girls didn't wear uniforms. And it was a Protestant public-school girl who taught most of us to kiss.

|9.1.05 @ 8:26AM|#

Hakluyt-

I see your point, but I've had a few too many dictionary debates both on and off line. (The most amusing one hinged on the meaning of the word "slut".) If I say "This was an activist ruling because...." there's always the very real risk that somebody will get stuck on the meaning of the word "activist" rather than the merits of the ruling (or lack thereof). And I hate it when that happens.

If you have a trick for dealing with that problem, by all means, share.

|9.1.05 @ 9:44AM|#

joe,

Not that you'll likely read this, but your opinions about what is or isn't judicial activism are just that, opinions. You seem to believe that congress is the supreme branch of government. Care to back that up using the constitution? My reading of the constitution leads me to believe that congress is only one-third of the pie. It seems to me that the original purpose of much of the constitution was to limit congresses power, out of fear of majority tyranny. When congress passes a law that violates the constitution, it is not only being activist, but criminal as well. If the SCOTUS strikes down such a law, it is not being activist; it's just serving its intended purpose.

America is not supposed to be a parliamentary democracy; it is supposed to be a constitutional republic. You obviously don't give a shit about minority rights. You seem to love majority oppression.

drf|9.1.05 @ 10:07AM|#

"America is not supposed to be a parliamentary democracy; it is supposed to be a constitutional republic. You obviously don't give a shit about minority rights. You seem to love majority oppression."

I thought it was an autonomous collective...

|9.1.05 @ 10:10AM|#

"You seem to believe that congress is the supreme branch of government."

I don't know why you'd draw that conclusion. I believe we have three coequal branches of government, each with its own proper sphere. Each checks, and is checked by, the others.

I think the difference in our definitions of "activist" is that I believe some activism - the striking down of laws by Congress and actions by the executive - is the proper sphere of the judiciary. You're assuming that, because I label such actions "activist," I'm disparaging them. But I'm not - as I wrote before, I conser the term to be value-neutral.

raymond|9.1.05 @ 11:23AM|#

It seems to me that "Congress" has the starring role in the Constitution. Not only is it dealt with in the first article, but that article is by far the longest in the Constitution. And besides, legislative powers is what it's all about. Congress - the people's representatives and the States' - actually makes those laws.

The president (elected by the States) has as his primary duty to execute the laws made by Congress. He must also, according to the Constitution, ensure that those laws do not violate the Constitution. (That's why he signs bills.) I doubt the Founders envisioned an empirical presidency such as those of Nixon and Bush.

The Judicial branch is just supposed to judge "federal" cases. Marbury v Madison was a clever - and, I suspect, unexpected - usurpation of executive responsibility.

Yes, there are checks and balances in the Constitution. But the real power is to be found in Congress.

The Constitution is a really cool document. It hasn't really been in effect since the Civil War. I wonder what a country which actually respected such a constitution would look like. (I think I know.)

|9.1.05 @ 11:28AM|#

Joe,
I think the communication problem lies in that you are using "activist" to mean an active and viable court and "modest" to mean a do-nothing court. Traditionally, an "activist" is someone who lobbies for change by legislation or action whereas "modest" means to be conservative in action and to make every move count.

How is this, from now on, anybody who uses the words "activist judge" or "activist judiciary" pays me $5 USD. I will be keeping tally and will bill at the end of every week. I expect payment in full, cash or money order. NO PERSONAL CHECKS!

raymond|9.2.05 @ 1:54AM|#

Imperial, not empirical.

David Nieporent|9.2.05 @ 5:09AM|#

Words (like, say, "judicial activist") actually have meanings, you idiots. You don't get to use them to mean exactly the opposite of their definitions because it looks good on a press release.

Indeed. For instance, you don't get to redefine it to mean "Showing up for work," as you just did. Judicial activism is when the court intrudes on the functions of the other branches of government -- say, by acting in a legislative capacity. Striking down a law which doesn't violate the Constitution is acting as a legislature. That's activist. Upholding a law which does violate the Constitution is acting as a legislature. That's activist. Upholding the Constituion is not activist.

A modest (or, if you'd like, overly modest) Supreme Court would have deferred to Congress's finding that domestic violence affects interstate commerce. They would have said, "Hey, that's their call."

That's true. But then they would have said, "The Constitution doesn't allow Congress to pass laws against 'things that affect interstate commerce,' so the 'finding' is irrelevant."

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