Republican Convention 2008

Republicans Oppose Judicial Activism, Except When They Don't


It's not exactly breaking news that the Republican Party platform (pdf) comes out against judicial activism, calling it "a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public." But the platform's lead example certainly leaves something to be desired. As the very next sentence begins: "We condemn the Supreme Court's disregard of homeowners' property rights in its Kelo decision."

There are many things wrong with the eminent domain abuse at the heart of Kelo v. City of New London (2005), but judicial activism is simply not one of them. In fact, Justice John Paul Stevens' majority opinion offers a great example of judicial restraint, with the Court deferring to the judgment of local authorities and refusing to enter the "political thicket" of local development fights. In theory, that's just the sort of restrained jurisprudence the GOP should be behind. But outside of Ron Paul, who's argued that "the fight against local eminent domain actions must take place at the local level," most Republicans seem unwilling to follow their own Supreme Court rhetoric to its logical conclusions.

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  1. Inconsistancy found in bureaucratic document hastily assembled from talking points! News at Eleven!

  2. Damon,

    Another reading of that is that the court expanded the definition of “public use” to encompass a category of property that was not eligible previously.

    Usually when a court is faced with expanding the definition of words to mean something entirely different and/or add a new category where none was previously, they exercise restraint and defer to the legislature.

    That was not the case in Kelo.

  3. Ron Paul is right once again – ‘Kelo’ is a local issue. My only quibble with him is on our “right to privacy” – I say we own it.

    The GOP hates him – the Dems avoid him like the plague – he is a king among dunces.

  4. Ron Paul is right once again – ‘Kelo’ is a local issue.

    Ron Paul is wrong once again. Rights are not subject to the local whims of an administration.

    The Fifth Amendment reads (relevant part) that “nor shall private property be taken for public use, without just compensation.”

    The Fourteenth Amendment incorporates that on the states via due process.

    The actions of New London would normally be considered an unjust taking, because expanding your tax base is not a traditional notion of what “public use” means.

    However, the Court *actively* shifted the definition of “public use”.

  5. Being for or against “judicial activism” is stupid. It is like being for or against voting “no”. In some cases where the precedent is awful, we want judges to engage in activism. In cases where the judiciary shouldn’t be the ones deciding an issue, or they are actively redefining something which then causes it to expand beyond reason, then they should be instead showing restraint. For example, it was “activism” that led the Supreme Court to rule that the commerce clause allows Congress regulate everything under the sun. It would be yet more “activism” to reverse that decision, now that it is precedent. That is, of course, assuming I am correctly defining judicial activism. The term seems to be somewhat of an enigma when it comes to a specific definition.

    I think what we want to focus on is not whether or not the court is “active”, but whether or not they are doing their jobs. The job of the Supreme Court is to make sure the laws passed by the legislature are Constitutional. Doing this job might require activism in some areas, and restraint in others.

  6. How did I not know that about Ron Paul? Give the man points for intellectual consistency.

    There is, on the right, a Grand Unified Theory of legal thought. If they don’t like it, it’s all the same thing. “Activism” means striking down laws passed by the legislature on the grounds that they conflict with the constitution. It also means upholding laws said to conflict with the constitution. It also means ignoring long-established precedent, as well as upholding long-established precedent. Sometimes it means ignoring the “plain meaning of the words,” while other times it means ignoring the established, though not textual, understanding of those words.

    The only thing that holds together the movement – conservative definition of “judicial activism” together is their not liking the outcome from an ideological or financial point of view. It has absolutely nothing to do with the reasoning process by which judges come to decisions.

  7. Optimist,

    Kelo didn’t expand the readings of any words, or establish any new understanding of concepts; quite the opposite, the court refused to change the established law as requested by the plaintiff. A decision striking down the takings, or even one establishing limits on the power as O’Conner called for in her dissent, would have been novel.

    If you’ve got a case for judicial activism, it’s with judges decades ago. The court didn’t establish a single new doctrine in Kelo, or apply any existing one any wider than previous courts.

    Just so we’re clear, saying the reading of the Fifth upheld by the court is wrong doesn’t change anything I just wrote, and doesn’t go to the question of whether that particular decision demonstrates judicial activism – unless you want to prove my point that you’re using the term to mean merely “a wrong reading, as I see it.”

  8. Activism ought to mean *rewriting* the law in the guise of *interpreting* it.

    The US Supreme Court has used activism to strike down actions of other parts of the government, and to uphold such actions.

    For instance, the Court rewrote the Commerce Clause to allow Congress to regulate all sorts of stuff the federal Constitution was never meant to delegate to Congress (like homegrown wheat and homegrown dope). That’s activism, and the judges don’t get a pass simply because some other branch of government approves the legal rewriting.

    Whether the activism is popular or not – whether other governmental agencies support it or not – does not decide the question of activism or non-activism. If the Court rewrities the law instead of sticking to its job of interpreting the law, that’s activism.

    As for *Kelo,* a case could be made that the Takings Clause (and the rest of the Bill of Rights) applies only to the feds, not to the states. Chief Justice John Marshall, a strong Nationalist, said as much in *Barron v. Baltimore.* The current thought on the Court is that the Fourteenth Amendment, which protects “privileges and immunities” and “due process,” prevents the states from violating the Takings Clause (and from violating most of the other provisions of the Bill of Rights). The Fourteenth Amendment is not a model of clarity, but there are good arguments on both sides for whether the Bill of Rights applies to the states.

    *If* the Takings Clause applies to the states, then *Kelo* seems dubious. The Takings clause refers only to taking for public “use,” which seems to rule out takings for non-public uses. Giving A’s property to B doesn’t sound like a public use, and saying that the public will “benefit” is an abuse of words.

  9. OK, there’s the question whether it’s “activist” for a court to overrule its own precedents.

    The situation arises all too often when the US Supreme Court has precedents which rewrite the law – if the Court wants to go back to interpreting the law, it has to reject the precedent. But if it makes a habit of rejecting precedent, it seems to be governed by no set standard.

    The problem only comes up because there are so many activist precedents. There’s a school of thought which says, “OK, those precedents were wrong at the time, but we can’t overrule them now, because that would overturn settled expectations,” such as the settled expectation that Congress can tell you how much wheat or dope to grow on your own property. Justice Scalia goes in for this sort of thing – he calls it “faint-hearted originalism.” In other words, if there’s a conflict between the original understanding of the Constitution and a clear line of activist precedents which ignore that original understanding, Scalia often goes with the precedents and screw the original understanding. He thinks this promotes stablility in the law – supposedly a conservative value. Hence his decision to tell people not to grow pot on their land – there’s a precedent that you can’t grow wheat on your land without Congressional say-so, and that precedent applies to pot, too.

    It’s kind of like the politicians who support the war in Iraq, even though they say it may not be a good idea. “Now that we’re in, we can’t pull out!”

    That’s also a good rationale for a rapist.

  10. Mad Max, that reminds me of an argument I read in a critique of Levy and Mellor’s The Dirty Dozen. The man writing the critique was a Harvard Law prof, but made the worst arguments. He basically said we can’t restore the commerce clause to what it was supposed to be because the Civil Rights Act is based off the expanded commerce clause. He then went further to say that if you are for restoring the commerce clause, you are against the Civil Rights Act.

    As for rights in the Bill of Rights applying to states, some do and some don’t. The court specifically has “incorporated” some of them to apply to states, some specifically not to, and simply hasn’t ruled on others. I believe the 5th amendment has been officially incorporated, if I’m not mistaken. So it therefore would apply to states as well. It is an interesting thing, since the Bill of Rights should technically have no impact on the law making abilities of Congress, and could only be a limiter for the states. Alas, what Madison feared would come of the Bill of Rights has passed, and the Bill of Rights is not considered the rights we do have, leaving all other rights at the whim of the feds. Now the 9th and 10th amendments are merely inkblots.

  11. “not considered the rights” = “now considered the rights”

  12. Against judicial activism except when being for it?

    That basically sums up everyone.

  13. I’m curious – which of the following qualify as “public use”?

    Land taken for railroad access
    Land taken for state highways
    Land taken for toll (private) highways where residuals are paid back to the state
    Land taken for private gas pipelines that serve the Public Service Commission
    Land taken for oil pipelines
    Land taken for water access
    Land taken for sports stadiums with privately leased luxury boxes

    I can go on and on……..

    I’m so glad the Constitution is so fucking clear on this shit……

  14. In fact, Justice John Paul Stevens’ majority opinion offers a great example of judicial restraint…

    I eminent domain not incorporated, 14th amendment style?

    Just asking. I don’t know.

  15. I think reason has an odd concept of an “activist” court. For them a non-activist court doesn’t do anything at all. It simply upholds previous rulings, or something.

    A real non-activist court rules according to the constitution whether it is striking down local laws or not.

  16. See?

    Activism = wrong decision.

    Stupid activist ump. That ball was high.

  17. Shrike, I think “public use” means that it is able to used by the entirety of the public. Like a park would be “public use”. From your list, the things given to private entities is not “public use”, unless the government still controls the land given, and that anyone who wishes it may access the land for its designated purpose. This, of course, should then be constrained by what the government can do in the first place, which then in turn restricts the reasons it could be taking the land.

  18. By the way,

    Eminent domain has officially been incorporated via the 14th, just to clear some things up.

  19. Eminent domain has officially been incorporated via the 14th, just to clear some things up.


    So it was activist not to uphold incorporated eminent domain protections.

  20. There are many things wrong with the eminent domain abuse at the heart of Kelo v. City of New London (2005), but judicial activism is simply not one of them.

    Unless you read Black’s Law Dictionary, or any one of other citations on the issue.

    Black’s Law Dictionary defines judicial activism as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

    Under that definition, it’s quite clear that ignoring the Constitution in order to rule in a particular way is judicial activism, even if it takes the form of refusing to overturn a (bad) law.

    I agree that the word has been confused and stretched so that it has all sorts of meanings. I’d like to see it no longer used. But Damon W. Root’s insistence that the word can only mean what he thinks it means, law dictionaries be damned, is confusing.

  21. And indeed, the quote offered from the platform, that judicial activism is “a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public,” certainly does seem to match the definition offered in the Black’s Law Dictionary, with a stress on “ignoring the Constitution” and “imposing their personal opinions.”

    Humpty Dumpty insisted that when he used a word, it meant just what he chose it to mean, no more or less. Damon Root would go further and insist that when others use a word, it must mean just what he chooses it to mean, no matter what dictionaries might say.

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