New at Reason
Damon W. Root digs through Hillary Clinton, Barack Obama and John McCain's briefs to get a sense of who they'll appoint to the Supreme Court, why they'll do it, and why you'll be unhappy about it.
Comments to "New at Reason":
Guy Montag | April 21, 2008, 12:24pm | #
I have to read an article to know I will be dissapointed with the possible Supreme Court choices of 2 Dem. Leftists and a RINO?TallDave | April 21, 2008, 12:37pm | #
Damon W. Root digs through Hillary Clinton, Barack Obama and John McCain's briefsEwwwwwwww.
Prolefeed | April 21, 2008, 12:40pm | #
The Kelo decision, it's important to remember, represents McCain's dream of judicial restraint, not his nightmare of judicial activism.I'm gonna call bullshit. The lower court decision on Kelo was judicial activism writ large, agreeing with expanding the definition of "public use" to mean "private use by politically-connected people".
By this contorted view of judicial constraint, it would be judicial activism to overturn the DC gun ban, because hey, a judge somewhere decided the Second Amendment doesn't really apply.
I mean, really, judicial activism is anytime the Supreme Court overturns a lower court decision? Really?
How can we know what thinking a prez will use in picking judges? Maybe they'll want a judge who'll be that extra vote in empowering them to accomplish what they want. OTOH, maybe they want one who'll provide an excuse for them to not get something done, so they can appear to favor some course of action while saying, too bad I'm not allowed because of the mean judge. Or maybe they'll be like Bush and just try to appoint cronies regardless of policies. An appointment to a federal bench could be payback to someone who helped them win a nomination to the US senate, or helped a crony's son get into West Point.
Prolefeed- That is basically what I was thinking when I read this. It sounds like Root's definition of "activism" is any situation where the court chooses to override the states' right to make their own decision about a matter.
Brian Sorgatz | April 21, 2008, 1:20pm | #
Prolefeed- That is basically what I was thinking when I read this. It sounds like Root's definition of "activism" is any situation where the court chooses to override the states' right to make their own decision about a matter.As I understand it, the conservative complaints about "judicial activism" that Root describes are essentially wishes for an unbridled tyranny of the majority. But if the Supreme Court is encouraged never to thwart the will of the majority of the citizenry expressed through legislation, what's the point of having that third branch of government, anyway?
To put it another way, Socrates could have used an Athenian Supreme Court to thwart the will of the majority that ordered his execution for "dangerous" speech.
Elemenope | April 21, 2008, 1:35pm | #
The real problem, IMHO, is that judges who are often identified as "liberal" are great on personal & civil liberties and pretty awful on property rights, and those monikered "conservative" are good on property and a fucking embarrassment on personal & civil liberties.Does anyone see those trends changing anytime soon? Because if not, I doubt there will be anyone to get excited about for the court in the near future.
JRD | April 21, 2008, 2:00pm | #
Yet more evidence that the term "activist" is meaningless and therefore useless in discussing judicial decisions. Frequently the term is used to simply mean "an opinion that I don't like," while Root seems to take it to mean any decision that strikes down an action of an elected branch of government. Neither sense of the term is at all helpful in distinguishing good decisions from bad ones. Note also the equivocation here-- I very much doubt that McCain was using the term "activist" in the same sense that Root does-- indeed, applying the former (and more common) definition, McCain would probably argue that Kelo was an activist decision.Joel | April 21, 2008, 2:06pm | #
The real problem, IMHO, is that judges who are often identified as "liberal" are great on personal & civil liberties and pretty awful on property rights, and those monikered "conservative" are good on property and a fucking embarrassment on personal & civil liberties.Yeah, which is just why I wish folks who have thought things through enough to prefer freedom to politics would stop seeing conservatives as the "lesser evil." Right wing, left wing - feh! Same carrion bird in between. From a freedom standpoint there's no difference between them.
R C Dean | April 21, 2008, 2:37pm | #
Yet more evidence that the term "activist" is meaningless and therefore useless in discussing judicial decisions. Frequently the term is used to simply mean "an opinion that I don't like,"Too true. The original definition had more to do with "legislating from the bench."
Overturning a state statute may or may not be legislating from the bench, depending on whether the statute is clearly unconstitutional. Roe v. Wade, depending as it does on emanations of penumbras to overturn a state law, probably qualifies. Assuming the D.C. gun laws are overturned, I wouldn't count that as legislation from the bench.
JRD | April 21, 2008, 3:38pm | #
R C Dean,True, but "legislating from the bench" creates the same problem with subjectivity as "activism" does. Of course it's true that some judicial opinions cross the line between good-faith interpretation of the law and usurpation of the legislative role, but where that line falls depends on the facts of each case and can be hard to determine.
If I recall correctly, I don't think that Roe explicitly mentions penumbras and emanations, but it does rely heavily on Griswold, which is where that nonsense originated. But that's a perfect example of what I'm talking about-- a reasonable argument can be made that Roe follows plausibly from Griswold, so in relying on the reasoning of a bad precedent, is the Court "legislating" or "interpreting"? I just don't think the distinction has much applicability most of the time.
Wicks Cherrycoke | April 21, 2008, 6:51pm | #
Two comments on the article:1. Since when does the Supreme Court pass judgment on the decision to initiate or end a war? Those decisions have always been made by the political branches, and the Court since John Marshall has never intervened in those decisions. McCain's support for the Iraq War, as opposed to his views (pro or con) on specific measures such as torture, has nothing to do with his choices for the Supreme Court.
2. I agree with Prolefeed: a court does not become "activist" when it strikes down an act of the legislature that either is clearly contrary to an express limitation on government action (e.g., taking of property for a non-public purpose and without due process of law) or exceeds the scope of a delegated power (e.g., using the commerce clause to regulate activity that has only the most attenuated no impact on interstate commerce. An "activist" court is one that re-writes constitutional law to reach a desired outcome, or which oversteps its authority as a decider of law to pass judgment on political questions that are the province of the legislature or executive.
On these measures, suggesting that Obama is the best choice among the candidates is somewhat hard to defend in my view. He all but invites his judges to base their decision on anything but the law.
On my lesser of evils calculus, McCain comes out best, but that's really up to your own discretion. In any event, as Reasonoids, and thus, ostensibly Libertarians, we shouldn't be voting for any of these losers.
'Griswold' repudiated the right of the state to prohibit contraceptive measures. The state has no business in such matters. 'Roe' simply fell in line with this notion.
Chad | April 23, 2008, 5:16am | #
I was in all a huff to complain about the article, but I'm glad to see my fellow Reason readers are smart enough to have preempted me. Mostly, the use of "judicial activism" as a meaningless insult bothered me. Would it have been so painful just to admit that McCain wins a point?My other soapbox issue was just barely touched on: the enormous bias against the war by the writers. As noted, the courts have basically had nothing to do with the status of war, so it was a red herring. Also, the whole enemy combatant thing is a big mess because all the old rules and reasonings assumed that the enemy would be a nation, and enemy combatants citizens or armies of such. Calling in a nebulous "war against terror" will inexorably put innocents in the crosshairs just as the "war against drugs" has.
So what would be a clear McCain victory suddenly gets transformed into an Obama one, with no explanation. By the author's own admission, some Kelo-like decision is bound to come up again, and we can only hope that the courts will discover individual rights by then. It is unlikely by historical precedent that the courts will visit the war issues, and they could be more easily patched up with clearer legislative action to boot.