One of the great successes of the legal wing of the conservative movement is the widespread connection in the mind of many citizens and pundits of "liberal" judicial philosophy with "activism," and "conservatism" with "strict constructionism." They'd have us believe that "liberal activist" and "conservative constructionist" are basically redundancies, and that there simply is no such thing as a conservative activist. This is patently untrue.
There is a very simple explanation for why a conservative may be activist and a liberal statist--the state of the law. The Warren Court wanted to overturn precedents, and so it ruled laws passed by Congress and (especially) state legislatures unconstitutional. And as the Court of that era slowly and sometimes not-so-slowly changed the law, the justices by definition needed to be less activist as the state of the law became more amenable to their views--precisely because they had changed the law.
But guess what? The Rehnquist Court did the same thing, as Republican-appointed justices found the laws passed by state legislatures and (especially) Congress during the years of the Great Society and thereafter to be out of line with the political and judicial philosophies they brought to the bench. Accordingly, they ruled to change the law too. Or--if we can pause a moment to act like adults and not be cowed by scary phrases devised by Federalist Society types to be used incessantly during hearings like the one presently underway to confirm Sonia Sotomayor--the Rehnquist Court trafficked heavily in "judge-made law."
The two figures in this post are created from data compiled by Syracuse University political scientist Thomas Keck for his book, The Most Activist Supreme Court in History.
That most activist Court? A: The Late Rehnquist Court, which in terms of the annual average number of federal statutes overturned by the Court ranks first. Though I only show data from the Roosevelt Court forward, Late Rehnquist has the highest score of any Court era going back to the days of John Jay. So much for modern conservatives' deference to legislatures and the disdain for "judge-made" law.
On the other hand, in the figure below we see that when it comes to rejecting state and local statutes, the late Warren Court was second most activist in American history. Here we see liberal activism, strongest in fact during the Great Society period and into the Burger period before fading as the (re)constituted Court slowly grows more favorable to the state of the law. But note that Early Rehnquist Court isn't far behind. Here we see the ideological back-and-forth of the modern Court as it reacted to new members. In perhaps the most concise summary of his findings, Keck writes in his book (p. 230), "[M]odern conservatives have tried to curtail the liberal activism they inherited from the Warren Court, while simultaneously seeking to develop a new conservative activism of their own."
Part of the sad kabuki dance of Supreme Court confirmations is the ritual denial by nominees that they will depart in any way from constitutional prerogatives, and that they will "respect the law" and venerate judicial precedents. Well, geez, if all the Court justices are reading the same Constitution, and the same laws passed by Congress and state legislatures, and the same judicial precedents, and never applying any judicial philosophy of their own, then the Court would never issue anything but unanimous decisions.
The whole point of the Court is to rule laws unconstitutional based on justices applying their philosophical interpretations of the Constitution, and to reverse bad precedents when they recognize them. And the point of presidents nominating justices of similar ideological ilk is to put them on the Court to do just that. If the standard really were that all precedents must be upheld, the Court might as well pack up and do nothing more than administer the judicial system and settle occasional disputes between the elected branches. (Oh, and the Chief Justice could still oversee presidential impeachments ... whooopee!) And, of course, by this same logic we'd still have Plessy v. Ferguson on the books, and no state-level protections for civil rights and liberties, and so on.
During confirmation hearings--whether for Sotomayor or John Roberts and Samuel Alito before her--the attempt to somehow disconnect what the justices actually do and what the nominees must promise they won't do is a magnificent farce that insults all of us.
7.16.2009
"Conservative Activist Judge" is NOT an Oxymoron
@ 9:01 AM
Subscribe to:
Post Comments (Atom)
97 comments
I suspect the reason the Burger Court has such a high average is one particular decision, circa 1973, which overruled at least 46 different state statutes, plus various federal and local ones at once on one particular issue.
I'll give you a clue - the companion case was Doe v. Bolton, and the lead plaintiff has had a recent habit of getting arrested in protests against her own case.
Thanks for this post. It always angers me when conservatives object to liberal justices on the grounds that we must not have activist justices, when in fact, conservative justices are at least as activist as liberal justices.
is anybody else wondering why the republican/conservatives are so upset by a judge who rules from their believes when for decades they have made opposition to abortion the litmus test for a judge
The data you show does not support your thesis. More often than not, the data shows that the "late" periods of a court are more "activist" than the "early" periods. This does not seem consistent with the notion that once the Court has aligned the law to its philosophy, then it slows down.
Also, I dislike graphs of this sort without error bars...the standard deviation during each period should be shown. That would reveal if, for example, JMS's point above is a minor factor or a crucial one.
My biggest worry is that we get all caught up in this philosophical mumbo jumbo regarding the tilting on this single issue, or that, when what we should be more concerned with is the propensity of corporatist jurists to give far more service to the rights of corporations/government/property to the rights of the individual. I wonder if there is a way to statistically measure this phenomenom, as it is slowly undermining our entire democracy.
Unfortunately, these bar charts are unable to answer three key questions. 1) What constitutes "overturning" a statute? For example, one can rule a phrase or part of a statute unconstitutional while keeping the rest of the statute intact. It would be interesting to see partial v. entire overrulings of statutory law. 2) On what bases did the Court overturn the law? For example, many people are much more comfortable with a law being overturned if there is at least arguable textual support for that decision. I think a large problem of say Roe v. Wade, vs. D.C. v. Heller is that the word "privacy" is never used in the Constitution, whereas "arms" is. It just requires a much larger stretch (and thus a greater strain on legitimacy) to get penumbras of amendments to come together to create a right (privacy) to protect an action (abortion), than merely reading words in one way rather than another, when both ways are plausible. Obviously, this doesn't mean the Rehnquist Court wasn't activist, but it does help to explain why they may catch less flak for it. It may also hint at a model of "legitimate" activism v. "illegitimate" activism. 3) What outs did each Supreme Court give Congress? For example, part of the problem with "Warren" activism is that the Warren Court seemed to be legislating from the bench. Rather than just declaring a law unconstitutional and leaving it up to the other branches to craft a solution, they wrote up their own solutions. For example, Roe reads like a piece of legislation. Miranda contains specific prescriptions on what the executive needs to do. Perhaps in contrast, it seems that the Rehnquist court may have been more deferential to allowing Congress to set its own remedies, i.e. striking down the Gun-Free School Zones Act as not having a close enough relation to interstate commerce, yet seeming to allow Congress' (very slight) revision to pass muster.
SarahLawrenceScott -
The data you show does not support your thesis. More often than not, the data shows that the "late" periods of a court are more "activist" than the "early" periods. This does not seem consistent with the notion that once the Court has aligned the law to its philosophy, then it slows down.
That's true, but the more important and central thesis here is that conservative courts are just as "activist" as liberal courts. That thesis is strongly supported.
The Warren Court engaged in "activism" not by overturning statutes, but very often by finding new rights and implementing them. Thus, convictions rather than statutes were overturned when Miranda and its progeny became the law. (I by no means dislike the activism; indeed, I am in favor of it. The Warren Court was the greatest Supreme Court of all time and very needed.)
So, the thesis of this entire post is suspect. But that's no surprise. It's Tom Schaller, pretending to be a statistician/politician.
Tom - it's really time you go back to something serious. These posts are pathetic.
There are at least two problems with this post as I see it.
First, SarahLawrenceScott is correct that the data actually oppose the thesis.
Second, the strict constructionist/judicial activist divide has nothing to do with overturning statutes, whether federal, state, or local. Strict constructionists will overturn statutes based on their sense that the statutes violate the original intent of the constitution. Judicial activists will overturn statutes based on a sense that the spirit of the times and current needs of the country warrant a new interpretation of the constitution that may vary from what the founders intended.
It seems clear that both liberal and conservative judges may rule based on their political philosophy and current aims for society rather than the initial intent of the founders. So the hypothesis is likely valid, though the arguments presented here don't support it.
Another effect of the conservative proposition is the idea that the founders were conservative. If conservative strict constructionist is an oxymoron, then the founders were conservative and liberals are trying to destroy the edifice they built. It is clever, if spurious. One can argue that the founders had various traits between and among them that might put them in either of the modern camps, but it is rather easy to make the case that at least Jefferson - the author of the Declaration of Independence, and Madison - the "father" of the constitution, were liberals in many modern senses of the word. Certainly in their own time they were thought as much - with disdain by the "conservatives" Adams and Hamilton.
Yes. I don't buy the premise of the post either. "Activism" doesn't have anything to do with overturning statutes.
This blog should stick to analyzing polling data which it does better than anyone else.
Perversely twisting numbers to fit a partisan agenda -- as is done here -- can only lower the credibility of your polling data analysis.
This post makes it point by using the oddest definition of "activist" I've ever heard.
It seems to confuse an "activist" court with an "active" one.
The two are entirely different. A court could be "activist" while being completely "inactive", and vice versa.
Activism means promoting your own agenda, which the post does point out. But that can't be judged by counting how many statutes are overturned. It can only be judged by examining the individual decisions and the decisions related to them to see the direction changes of the court.
Now, it's true that a strict constructionist court could be an "activist" one, in that it would promote the agenda of enforcing what's actually written in the constitution. Again, though, that's not what the pretty graphs in the post represent. And it would also use a (while technically correct) definition of "activism" that would differ from the layman's view of it, which is that of "creating new law" or "new powers" not found in the Constitution. (I deliberately did not say "creating new rights" as the government can not give rights, only take them away).
In short, this is another useless lightweight mathematical post on this blog.
I forget if I read this in Jan Crawford Greenburg's "Supreme Conflict" or Jeffrey Toobin's "The Nine", (I think it was Toobin's) but the flip side to judicial activism is judicial abdication. That is, the court's failure to overturn a law or lower court decision when it should do so. In one of those books, the author wrote about examples of each of the four combinations of Liberal/Conservative judicial Activism/Abdication.
I believe a big role of the courts, especially the SCOTUS, is the role of a watchdog (i.e. checks and balances) over legislative branches, the President, and lower court decisions. And with any watchdog, I would rather that watchdog bark too often (i.e. the Warren Court, my favorite) than not often enough.
There is a simpler "kabuki dance" involved here than the Court battling its own earlier iterations through an "activist" willingness to overturn precedent or a "constructionist" respect for the body's prior affirmations. The fact is that the Supreme Court, which is constitutionally (and Constitutionally) insulated from the democratic process far more than any other branch of government, is quite likely to be out of lockstep with prevailing public opinion, be it expressed through state legislatures or the Congress.
The situation we see now, in which a wave of progressive sentiment has essentially swept the conservative old guard out of power at both the federal and state level throughout the country, is not unique. It frequently happens that drastic backlashes against the reigning ideology are tempered by the longevity of a Supreme Court roster (or of an individual justice's tenure). Judicial "activism" is just as likely, if not more likely, to manifest as an opposition to ideologically hostile legislatures than to previous Court decisions.
That is to say: conservative Courts presiding during eras of generally liberal legislation are more likely to be (or to be perceived as) "acivist" because they will have more opportunities to rule on laws to which they are ideologically opposed. Liberal Courts in conservative legislative eras will also face more laws that offend their political and philosophical sensibilities, so they, too, will be "activist." Conservative Courts dealing with a conservative Congress (and state legislatures) and liberal Courts in liberal eras will have much less cause or temptation to overturn laws, so they will be seen as "restrained."
However, it is a function of our form of government that the ideology of the Supreme Court will often be a vestigial and far-reaching appendage of a previous political era, meaning that — due to the long tenure of Supreme Court justices — a conservative Court will often outlast a more conservative legislative era and become an activist Court during the liberal backlash. (This is the situation we are seeing now.) Meanwhile, a liberal Court can last into a conservative age, which is what we saw (with somewhat less ideological uniformity) with the late Warren Court during the early Nixon years.
It's true that if a liberal or conservative era drags on long enough to overtake the Court, the Court will end up vying more against precedent than current law. But that probably happens less than the situation I described above.
@SarahLawrenceScott ... Your early/late dichotomy is definitely oversimplified and probably wrong. Tom could just as easily have chosen much earlier examples of an activist judiciary, particularly a conservative one. See the unbelievable intellectual contortions and philosophical cherry-picking performed by the turn-of-the-(last)-century Fuller Court to undermine, manipulate and distort the Fourteenth Amendment.
I think that the STepper's post is critical to this argument. There is a lot more going on here than statutes: administrative agency decisions (which the Rehnquist Court was particularly fond of overturning), convictions, lower court rulings, and perhaps most importantly prior Supreme Court rulings.
I think you'll see that one great source of the Rehnquist and Roberts Courts' activism was in SUSTAINING convictions that would have been reversed under established precedent from the Warren and Burger courts, in overruling those criminal procedure decisions, and in essentially taking a dive for the executive branch.
The notion that only in overturning something is a court activist is deeply flawed. Not to mention the fact that I personally love it when the Court fulfills its original purpose and steps in for civil liberties and to strike a blow against majority whim. That is the proper role of the court, and its time that liberals stood up for that. The Court's not just there to rubberstamp every abuse of power possible.
You've got to hand it to those conservatives. They've been creaming liberals on the PR wars. First of all, they've convinced people that liberal is a bad word. They've convinced themselves that their kowtowing to fringe religion and authoritarian urges makes them the party of liberty. They've convinced the public that judicial activism is a liberal thing.
I think what's missing here is everything going on outside the court. Early in a court's life, it may be close in ideology to other branches of governments, but as the court changes less than the government, that changes over its life. Thus we see more later courts overturning more decisions.
The word "activist" is so meaningless these days that I'm fine with this definition of it.
Wow! What a total misunderstanding of the term "judicial activism." Judicial activism is not considered objectionable simply because some Court precedents are overturned or popular laws are found unconstitutional. Most legal scholars accept that the major part of the Supreme Court's job, since Marbury v. Madison, is judicial review--i.e., to determine whether acts of Congress are faithful to the Constitution. Judicial activism becomes problematic when the Court strikes down laws for reasons that have no grounding in the Constitution. If a Justice relies exclusively on the text and structure of the Constitution to strike down legislation, he/she is not a judicial activist. Similarly, if a Justice ignores stare decisis because the Court's previous holding had no foundation in constitutional text or American legal traditions, that Justice is not being a judicial activist. He/she is simply restoring basic constitutional and legal principles that were ignored with the firts holding.
It seems to me that judicial activism cannot be assessed independent of the legislative era (with some time lag). A passive legislature seems less likely to engender being overturned than an aggressive one.
This is an excellent post, and very timely. As Al Franken pointed out, "activist judge" is really just a code phrase for "a judge whose rulings I disagree with."
"Activist judge" actually is a redundancy - Supreme Court Justices are supposed to make rulings - on lower court decisions, on previous Supreme Court decisions, and on federal, state, and local laws. If all SCOTUS was supposed to do was rubber stamp what had come before, they'd have no reason to exist.
That conservatives have made phases such as "activist judge" and "legislating from the bench" into everyday terms is a testament to Orwell's warnings about the power of doublespeak. There is no doubt these terms apply as equally to conservative Justices as to liberal ones.
Conservative Justices are most certainly interested in reshaping society through exercising the power of the court, and it is hypocritical nonsense to pretend otherwise.
Thank you, Tom, for making this case.
I think the data has a point, but the post misses the point. Rehnquist did display some 'judicial activism' (whatever that term means) by implementing his New Federalism and greatly expanding the scope of State's Rights. This explains the high number of Federal statutes overturned in the late court, and the high number of State statutes in the early court. As Rehnquist, Scalia, and Thomas were appointed and able to write precedent-setting, Federalism opinions, they then had the legal support (from their own decisions) to overturn more federal statues later in the era. That ability to craft legal precedent that went against the tide (of the Burger and Warren Courts) is activism in a sense. Rehnquist was in-fact 'legislating from the bench' by using his New Federalism ideology to overturn Congressional intent.
One thing not mentioned in the discussion of the Warren and Burger eras is Jim Crow. These earlier courts were dealing with state laws that were blatantly racist and would never be passed today. So it's not really possible to have an apples-to-apples comparision of the Warren court and the Roberts court in terms of overturning state and local statutes.
It would be interesting if the President and congress would ignore a supreme court ruling the way Andy Jacckson did in 1832. Judicial review is not a part of the constitution.
@RWD:
One thing not mentioned in the discussion of the Warren and Burger eras is Jim Crow. These earlier courts were dealing with state laws that were blatantly racist and would never be passed today. So it's not really possible to have an apples-to-apples comparision of the Warren court and the Roberts court in terms of overturning state and local statutes.
I disagree with you here. One of the reasons these laws "would never be passed today" is precisely because of the rulings of the Warren and Burger courts. The Rehnquist and Roberts courts are trying to have the same sort of effect - to reshape society to the point where the things they object to will seem equally as unthinkable and immoral to future generations as racist laws do to us today.
@Shrinkers, not sure we're really disagreeing.
What I meant was, from the point of view of the raw number of statutes to overturn, the Warren court had a lot more low-hanging fruit to harvest. So even a court as liberal as Warren would not have overturned as many statutes in the 1990s, simply because the most obviously racist laws had already been overturned. Therefore, the bar graphs are somewhat misleading.
@RWD
Thanks for the clarification. Makes sense.
IMO by the way, an "activist court" is a Good Thing, regardless of the ideological direction it takes. Our tripartate government is supposed to provide checks and balances, and the three branches are supposed to challenge each other.
Now, I have my own goals and directions I want the country to move in. But one of the good things a conservative SCOTUS will do is force the legislature and executive to make ironclad laws and policies - perhaps in the form of Constitutional amendments, if needed - that can't be undone by future courts. It's always good to have a Devil's Advocate in the room.
From a conservative point of view an activist judge is anyone who doesn`t agree with them. Seems to me these conservatives are full of it.
They don`t think that the conservative branch of the supreme court isn`t pre judgeing cases. I mean Thomas rules against everything that would give anyone a right.
These hearings are a joke, they always say nothing or lie like Roberts and Alito did and I assume Soto is.
She is coming off as quite moderate,I hope Obama knows what he s getting, it seems totally petty for republicans to complain about her, the next opening will probably be a flaming liberal if the demS get a couple of more senate seats.
The republicans better pray for the health of their conservatives,
several are in their seventies.
You can generally tell the comment that makes the most sense by figuring out how much everyone else simply ignores them.
Today's Winner: Christian Brockman
He pretty much /thread-ed this whole discussion.
It seems to me that this post is being almost deliberately misunderstood, due to a perception that the author is unpopular.
An extremely common claim by the political right and the Republican party is that conservative judges are less "activist" than liberal judges.
(I personally see that as a mere coded reference, allowing the speaker to imply approval for judicially overturned institutions such as segregation while not making open, inflammatory statements, but since the claim is common it deserves to be addressed.)
Chris of Rights said -
Activism means promoting your own agenda, which the post does point out. But that can't be judged by counting how many statutes are overturned. It can only be judged by examining the individual decisions and the decisions related to them to see the direction changes of the court.
That's a very good point, but it makes activism somewhat difficult to quantify. It is often reasonable to quantify an associated variable, where quantification of the underlying variable is not immediately practical. Caveats and commitments to later confirmation can be valuable in such cases.
It may be reasonable to advance the rate of overturning of statutes as a good approximation of how activist a court is, and thus an acceptable approximation of activism, with caveats.
While I agree that refusing to hear cases, or siding passively with legislatures, could theoretically be seen as a form of "activism", I would be inclined to accept the approximation that an activist court and an active court are very similar things, most of the time.
There is abundant evidence that the current right wing court has been one of the most "activist" in history, by any reasonable standard.
Taken on its own, this post is not exceptionally powerful, but neither is it worthless, and in general, it supports the thesis which is reflected in the title.
I think the term 'activist judge' is an interesting one. I would accept that it might appear for instance as if SCOTUS overstepped its job in the Warren era, but you could also make a case for saying that in someways it was very sensibly setting the limits of what it would consider constitutional in any forthcoming legislation.
And for that matter another thing that always occurs to me is that it is often the same people who decry 'legislation from the bench' who then seem to want to 'legislate through the constitution', for instance by promoting a constitutional amendment banning abortion. That seems to me to be just as bad, and equally threatening to constitutional law. (The prohibition amendment is a good example of why this is bad completely leaving aside the misuse of the constitution in regulating behavior).
But I think there is a level in which for instance overturning Roe vs Wade would be judicial activism, but I am not sure that activism from the bench is such a bad thing. One of the issues being that the Supreme Court is used to test the law, and so on occasion it is going to make law ie there are going to be times when a new problem confronts the court, or a bad judgement from a previous era will reemerge. You could suggest that when Obama is talking of 'empathy', one thing this refers to is an understanding of the practical consequence of a judgement and the fact that that has a bearing on constitutionality (refer hear to the Brown decision for instance). The law does have to be both legal and practical.
The second chart shows that the most activist courts overturned state/local statutes at rates of 19, 16 and 10. The first chart shows federal statutes overturned at rates of 3, 2 and 2. Yet the scales of the charts are different, displaying the 3 in the first chart at the same size as the 19 in the second chart, and using that to assert that the two maximums are equally "activist".
That's bad math.
How can we know whether a high rate of judicial review corresponds to liberal or conservative activism simply by knowing the ideology of the chief justice (as the charts would imply?). We need to know the rate at which statutes favored by liberals, as opposed to statutes favored by conservatives, were overturned to assess the ideological direction of activism by the court in a particular era.
I don't think it's an issue of the Chief Justice's ideology, really. I just think that's a convenient way to group the era, that's all. For instance, the Burger Court(mmmmm, Burger) is generally considered to be somewhat liberal despite the fact that Burger himself was clearly no liberal.
If you read through these comments you see quite clearly that
conservatives say that yes,
"their" judges overturn laws but that's because they're applying the Constitution, while liberals are applying their personal prejudices. Liberals, of course, say the same thing of their guys, and we get nowhere.
It would be nice if somebody would say, at one of these hearings, that what conservatives REALLY objected to about the Warren Court was that it interpreted the Constitution to forbid legalized racism, and conservatives have never forgiven it for that. But all that last sentence is, is my own prejudice, really. The point is that there is no common ground between liberals and conservatives on matters of the law and the Constitution anymore, and we might as well accept it and apply brute force to whichever side we support, because nothing else will have any meaning.
Eight years of Obama and eight years of another Democrat should give us a court that puts the corporate agenda back in second place to the national welfare where it, IMO, belongs. In the meantime, we have the kabuki dance...
As one of those who has criticized Mr. Schaller, I have to say this post is an improvement.
Perhaps the data don't support the point strongly, as judicial activism is too complicated an idea to quantify easily, but I do agree with the general thrust that the right has quite falsely tried to claim a sort of moral high ground in the debate about the judiciary. They are all about judicial restraint and deferring to legislatures...as long as that achieves conservative ends. If, however, conservative ends are achieved by reading the Constitution in an expansive way to subvert the attempts by a state legislature to do something liberal, they're all for that. A good example is Boy Scouts of America vs. Dale. Rehnquist, Scalia and the gang offer a contrived and contorted interpretation of the of the first amendment to prevent New Jersey from keeping the Boy Scouts from discriminating. It's a striking example of hypocrisy given the usual conservative complaint that liberals use an expansive reading of the Constitution to invent rights that aren't there explicitly.
SarahLawrenceScott:
For what it's worth, I've run this data before, and while I don't have it before me, adding the error bars would not change the conclusions made.
Moreover, Tom didn't make this clear, but the early/late dichotomy has nothing to do with temporal change per se, and everything to do with a Court whose membership changed in dramatic ways during the Chief's term. The "late" Warren Court differed from the "early" period primarily because the retirement of Frankfurter led to a liberal majority on the Court that was willing to strike down more laws. Similarly, the "late" Rehnquist Court refers to the arrival of Thomas to the Court. Thomas cemeted a five-justice majority that was willing to strike down federal statutes and limit federal power along Commerce clause, federalism, and sovereign immunity grounds.
So more succinctly: the early and late periods for these Courts were so different ideologically that it makes sense to separate them at these cut-points.
One lesson from the data might be, unsurprisingly, that when a party succeeds in putting five or more reliably conservative or reliably liberal justices on the Court, you're going to see the Court exert more power over laws that are out of step with its current philosophy. Given the way that Keck and other political scientists define their terms, such big changes usually include a fair amount of "activism."
And yes, Richard's right: if we broke things down by "natural courts" (those periods where the Court's membership was stable), it would difficult to garner any conclusions, as well as difficult to present graphically.
Naturally, you can quibble with the definition of activism and the methodology used here. But Keck's thesis is solid and the book is worth a read.
@SarahLawrenceScott:
Clearly you didn't bother to look at the units on the plot, which are the average annual number of Federal (or State/Local) statutes overturned. Those plots do not have error bars because there is no error in the numbers: either the court overturned a Federal statute or it didn't. Those aren't estimates, they're hard data. Now, Nate could have included the high-low data, as well, but at the end of the day you could compute the total number of statutes overturned for each court and corresponding period.
I think that the broader point is that Nate appears to be making is the term "judicial activism" is conservative code speak. If you define activism as overturning the will of the people as expressed through their local, state, and federal law-making bodies, then overturning a statute produced by a liberal legislative body (e.g., free health care for everyone) is activism as much as overturning a statute produced by a conservative legislative body (e.g., free guns for everybody). Case in point is Sonia Sotomayor's opinion in the Ricci case. Given the strict confines of her role at the appellate level, had she (in empathizing with the plaintiffs) decided that reverse discrimination had occurred and overturned the lower court's decision, then THAT would have been judicial activism because only the SCOTUS was to controlling legal authority to review the merits of the plaintiffs and defendants.
The whole point of the Court is to rule laws unconstitutional based on justices applying their philosophical interpretations of the Constitution, and to reverse bad precedents when they recognize them.
Hardly.
The job of a judge is to impartially apply the law as written to a given set of facts. Judicial activism is when a judge either creates new law or voids the law as it is written to conform with their own personal policy preferences. Your post excerpted above is a pretty good description of improper judicial activism in action.
Judicial activism is not necessarily limited to either political liberals or conservatives, but does tend to be a predominantly leftist legal philosophy because it is a means of bypassing a center right electorate. There are political conservatives who similarly abuse their judicial power such as Kennedy and O'Connor.
One cannot measure judicial activism by the number of statutes found unconstitutional. There are two parties at work here - the judiciary and the Congress - and there are three different possible interactions that might lead to the court striking down a statute.
1) The court is activist and struck down a constitutional statute because the judges disagreed with the policy advanced by the statute.
2) The court is activist and struck down an unconstitutional statute because the judges disagreed with the policy advanced by the statute.
3) The court is not activist and struck down an unconstitutional statute because it violated the Constitution as it was written.
Thus, there is no way to tell from raw data whether a court was applying the law or its own policy preferences in striking down a statute.
On a similar note, it is not judicial activism to reverse activist judicial precedent. The supreme law of the land is the Constitution followed by statute. Article III does not permit the judiciary to create common law. Thus, if a previous activist court rendered an opinion that was contrary to the Constitution as it was written (i.e. the Second Amendment's "right of the People" actually means power of the states), then it is not an act of activism to reverse the erroneous precedent and recognize again the Constitution as it was written. (See Heller.)
The "Kabuki dance" of judges appearing before Senators and essentially saying NOTHING whatever that might offend anybody is simply part of the Senatorial confirmation process.
You should read Robert Reich's "Locked Inside the Cabinet." He describes the briefing process to prep him as a witness at his confirmation hearing.
"That makes an interesting point Senator."
"I'll have to get back to you on that Senator."
"I'd have to respectfully disagree with you there Senator." [smile]
It's ALL about stroking the Senators' EGOs which are enormous.
Normally, there are 40 Senators or more for each party, so they can block any appointee, but they normally won't unless said appointee gives them some HOOK, some controversial thing they can sink their teeth into and bluster and blather about.
Republicans attempted to do the same thing Democrats attempted against Roberts and Alito to dig up some dirt. And, the appointee can lie blatantly "I don't have a considered opinion about that Senator."
As long as you don't give them any ammunition, they can't shoot you down.
Thus every appointee must avoid the obvious trap or rising to the bait when Senator Ding-bat starts making a total ass-hat of himself, thus proving he doesn't have a CLUE what he's talking about.
You CAN'T say "You know Senator, that's just about the stupidest thing I've ever heard in the last 10 years. How on earth did you even become a United States Senator with a brain the size of a walnut?"
Bart, what you are claiming is an impossibility.
"Impartially apply the law as written to a given set of facts" - this doesn't work. Two reasons:
1) The law may be contradictory. I don't just mean a recent law contradicting the Constitution; that's easy. I mean two laws on equal "levels" contradicting each other, or a poorly written piece of legislation containing an inherent contradiction.
2) The law is not written using meaning, it is written using words.
It's not possible to directly encode meaning onto a piece of paper. All we have are words, and meanings associated - but not perfectly bound - to those words. This is the interpretation step. Two reasonable people can, reading the same passage, interpret from the words two different meanings. The Supreme Court exists to provide an authoritative interpretation. Philosophical perspective is inextricable from this interpretation process; consider as simple an example as the countless laws that reference a "reasonable person" standard. There is no way to strictly define a reasonable person, so the judges' perceptions of what is "reasonable" must necessarily affect their rulings.
To put it another way - if it were as simple a matter as taking a law and applying it to facts without making any personal decisions in the process, we could have a computer do it.
More Things NOT to say at your confirmation hearing for a life-time appointment to a Federal Court:
1. "You know Senator, they warned me you were a senile old ding-bat, but until now I never realized just how decayed your brain really is!"
2. "You display a shocking ignorance of the subject matter we're discussing Senator. Didn't your staff even brief you about this point, or didn't you bother to read their briefing paper?"
3. In listening to your last question Senator, I couldn't help being reminded of Mark Twain's famous aphorism: "better to keep your mouth shut and have people think you're a fool than to open it and remove all doubt."
4. "Senator, did you forget to take your meds this morning? Because your babbling is making even less sense than usual."
5. "You know Senator, your mind is a terrible thing to lose! Perhaps you should go look for it."
Andrey Stroilov said...
"Impartially apply the law as written to a given set of facts" - this doesn't work. Two reasons:
1) The law may be contradictory. I don't just mean a recent law contradicting the Constitution; that's easy. I mean two laws on equal "levels" contradicting each other, or a poorly written piece of legislation containing an inherent contradiction.
There are multiple impartial doctrines to deal with conflicting laws such as order of enactment and which law is more specific.
2) The law is not written using meaning, it is written using words. It's not possible to directly encode meaning onto a piece of paper. All we have are words, and meanings associated - but not perfectly bound - to those words. This is the interpretation step. Two reasonable people can, reading the same passage, interpret from the words two different meanings.
Words and phrases have determinable meanings. As with contracts, constitutional and statutory interpretation should apply the meanings of words, phrases and terms of art used in the law as they were originally understood by the parties and general populace at the time the law was enacted.
The Supreme Court exists to provide an authoritative interpretation.
No, the Supreme Court exists to resolve disputes in lower courts and rule on the occasional case of original jurisdiction. The Supremes are not oracles pronouncing the law. They are referees impartially applying the rules.
Philosophical perspective is inextricable from this interpretation process; consider as simple an example as the countless laws that reference a "reasonable person" standard. There is no way to strictly define a reasonable person, so the judges' perceptions of what is "reasonable" must necessarily affect their rulings.
The reasonable person standard refers the jurors applying their life experiences to arrive at a finding of fact. The standard has nothing to do with applying the law.
To put it another way - if it were as simple a matter as taking a law and applying it to facts without making any personal decisions in the process, we could have a computer do it.
The only reason a computer cannot do this work is that no one has designed the software yet. Software for services like Legal Zoom are beginning to move seriously into areas that lawyers claimed only they were able to handle. I see no reason why this trend will not continue.
Bart DePalma,
Without necesarily disagreeing with what you say, I think what you have given is a very good text book answer as to the role of the court, and courts in general. The problem is that it doesn't always work like that. Take for instance the issue of abortion. Trying to apply the constitution to a situation that could not possibly be foreseen by the writers of the constitution is problematic. For a start, how can you decide which parts of the constitution apply? Does a fetus have rights? Thats not specifically dealt with within the constitution, so very quickly we move into areas of interpretation.
I wonder if actually the founding fathers realised the difficulties that interpretation would cause, hence the fact that a place on the court is a political appointee and that in the future the people, through there elected officials, should have a say in how the constitution is interpreted?
"The only reason a computer cannot do this work is that no one has designed the software yet. Software for services like Legal Zoom are beginning to move seriously into areas that lawyers claimed only they were able to handle. I see no reason why this trend will not continue."
This is true, the trend will continue. And clients will continue to get screwed by thinking that they are getting something on the cheap, when they are only getting ripped off.
It takes brains to figure out how to draft contracts, wills and forms and to interpret the law. No software program comes with a legally trained brain attached.
Worst aspect of it is that these forms have to be pretty general to apply to every possible situation. Unfortunately, every situation is unique and thus the client needs are usually somewhat unique.
It's actually RARE to get a completely standard situation that could be completely covered by the standard form.
Bart: I can't believe I have to make these points, but here goes:
First of all, your textualist argument is rejected by most constitutional scholars, even conservative ones, as impossibly ridiculous to apply as well as absurd in light of the constitution's purpose. It would of course invalidate every search using technology that didn't exist in the late 19th century, every method of punishment would be judged by that period's technology and valuation (so that $1000 fine is now cruel, representing a fortune at that time, and you better believe that the electric chair was unusual to them). No Air Force, no ability for the federal government to regulate airplanes or the internet or phones or tv or space travel, because those didn't exist and could not have been included in a definition contemporaneous with the Constitution.
It would require CONSTANT amendment to the Constitution to fix these glaring problems. We'd probably be on #4,956 right now.
The Founders, making it very difficult to amend the Constitution, also wanted the Constitution to be a document that wasn't worthless as soon as they invented the rifled musket.
markymark said...
Take for instance the issue of abortion. Trying to apply the constitution to a situation that could not possibly be foreseen by the writers of the constitution is problematic.
Not really. The Constitution protects enumerated and historically well established rights. A right to abortion is neither and is thus not a right protected by the Constitution. This is the reason why the Supremes in Roe offered the weak nonsense about penumbral privacy rights.
Does a fetus have rights?
The proper question is whether an unborn child is a person under the law. Although I am categorically opposed to nearly all abortion, I do not claim that this is a matter for the courts. This is a public policy issue best left to the Congress and state legislatures.
"Does a fetus have rights?
The proper question is whether an unborn child is a person under the law. Although I am categorically opposed to nearly all abortion, I do not claim that this is a matter for the courts. This is a public policy issue best left to the Congress and state legislatures."
By that conservative abdicationist logic (which, I forgot to mention, is wholly refuted by the Federalist Papers), then a legislatively-required abortion is just as permissible as a legislative ban on it.
"The only reason a computer cannot do this work is that no one has designed the software yet. Software for services like Legal Zoom are beginning to move seriously into areas that lawyers claimed only they were able to handle. I see no reason why this trend will not continue."
Have you ever used a computer translation service, like babelfish? If you had, you'd realize how absurd your notion is. Computers are NOWHERE CLOSE to being able to replicate human analysis.
Richard said...
First of all, your textualist argument is rejected by most constitutional scholars, even conservative ones...
I am advancing the traditional legal analysis and majority position among the citizenry. It is true that the leftists that dominate legal academia would prefer a federal constitutional common law established by judges who share their policy preferences, but this position is completely contrary to the view of the judiciary as the weakest branch advanced by the Federalist Papers and universally shared by the Founders.
It would of course invalidate every search using technology that didn't exist in the late 19th century.
Not really. The general protections such as reasonable searches and seizures, due process and cruel and unusual punishments are essentially invitations to the courts and Congress to establish procedural rules. The enumerated protections of substantive rights can be reasonably applied by using the original meaning of their text.
The natural and preexisting "right of the people to keep and bear arms" is just such a provision. "Arms" means small arms normally owned and carried by the citizenry that are fit for, at the very least, militia duty. While there might be some quibbling around the edges about exotic arms like sawed off shotguns, the vast majority of arms owned by the citizenry today would qualify.
"The Constitution protects enumerated and historically well established rights."
The Constitution also specifically says that the enumeration of certain rights does not mean that other rights don't exist. You know, the 9th amendment? "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I hate being a contrarian, but the "Late Rhenquist" court wasn't exactly a conservative bunch. Stevens, Souter, Breyer and Ginsburg were all consistent liberal votes and O'Connor and Kennedy were moderate conservatives at most. Many of the state laws that were overturned by the "Late Rehnquist" bunch were overturned by a Stevens, Souter, Breyer, Ginsburg and O'Connor/Kennedy majority.
Also, overturning state statutes is not exactly a good example of "judge made" law. If a state law violates the U.S. Constitution, the Supreme Court has a duty to strike that law down. All judges would agree with that. The judge made law that strict constructionists don't like is the judge made law that is added to the Constitution without using the formal amendment process. A "liberal activist" judge "makes" law by creating rights that are not found in the constitution, and using those new "constitutional" rights to strike down statutes. That is judicial activism, and that is what upsets conservatives.
Oh the majority position among the citizenry? Well, you sold me. They really have a grip on the law. You went to law school, you should know a little better.
Traditional position? Since when? Nobody on the Court agrees with you, except perhaps Scalia. And I would say he doesn't.
Upon what do you base your interpretation of that invitation to make procedural rules upon? Would not that have been included in the text, should it have been intended? And since it doesn't say that, well, I think your own theory invalidates your claim. And doesn't that invite such dangerous subjectivity into it? And what's the point of having a Bill of Rights amendment that just asks for any old procedural rules? You are seriously saying there is no substantive requirement to the 4th amendment?
If you were correct, wouldn't you expect such rules to be immediately made?
What about the 1st Amendment? Would that not be able to apply to the Internet and such things? Taking of course their literal understanding of what would be considered "speech" at the time, and not extrapolating (that would wander into Originalism at least, which would undermine your textualist argument).
And, while we're on the subject, isn't federal common law exactly what the Founders were used to? Their notion of rights came entirely out of common law and equity decisions (minus a Magna Carta here or there). Isn't that therefore the historical and traditional position? I mean, England's still got a common-law constitution.
Essentially, your argument is this:
The words mean what they meant at the time, except for when they hide an invitation to make up any procedures whatsoever, which will all pass constitutional muster.
This interpretation is based upon traditional values and notions of rights while rejecting the vehicle by which such rights traditionally were established.
If you are a judge, you are an "activist". Judges judge, that's their job. They interpret the law based on their own intellect and decide cases based on their own prejudices. If, like Roberts said during his hearing, judges are like umpires, then they can decide in one of three ways. They can call it like it is. That is, the decision is either right or wrong, left or right, up or down with no leeway for in between. They can call them as they see them, that is, based on the facts that are presented and what they can discern from the law, they decide the outcome. And thirdly, it is nothing until they call it, which is exactly what happens. They can decide the case any which way they want after the facts are presented, and if they are a Supreme Court judge, there is nothing that can be done to overturn the decision. therefore, all judges are "activist".
I hate being a contrarian, but the "Late Rhenquist" court wasn't exactly a conservative bunch. Stevens, Souter, Breyer and Ginsburg were all consistent liberal votes and O'Connor and Kennedy were moderate conservatives at most. Many of the state laws that were overturned by the "Late Rehnquist" bunch were overturned by a Stevens, Souter, Breyer, Ginsburg and O'Connor/Kennedy majority.
That is somewhat accurate only in a relative sense. Ginsburg was, and is, the only real "liberal" on the Court. Breyer is a moderate-to-liberal, and Stevens and Souter (they were Republicans, recall) are moderates at most. O'Connor and Kennedy were/are conservative, and the rest were so far right they make Ronald Reagan look like Mr. DePalma here.
Therefore, with a solid majority from the conservative to extreme right area, four votes APPEAR liberal. But that doesn't make it so; its only a function of the strong rightward tilt of the Court.
The whole concept of "original intent" is very vague at best. The Founding Fathers who wrote our constitution had a lot of different ideas on what should go in there and what shouldn't. And even after they agreed on a version and sent it to the states for ratification, they still disagreed on how it should be interpreted. Should the Federal government have more power (Hamilton) or the States (Jefferson). I think it's very presumptive and arrogant of conservatives to claim that only "they" understand what the constitution really means and how it should be applied. Sometimes, I think conservatives interpret the constitution how they would have written it, which is in my opinion the very definition of Conservative Judicial Activism.
RWD said...
BD: "The Constitution protects enumerated and historically well established rights."
The Constitution also specifically says that the enumeration of certain rights does not mean that other rights don't exist. You know, the 9th amendment? "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
My inclusion of "historically well established rights" refers to the Ninth Amendment catchall provision.
Nodak Brian said...
The whole concept of "original intent" is very vague at best. The Founding Fathers who wrote our constitution had a lot of different ideas on what should go in there and what shouldn't.
Original meaning and original intent are not necessarily analogous.
Under original meaning, the text governs application of the law and courts apply the original meaning of the words and phrases in that text. This is not all that difficult.
Under original intent, the courts must engage in an historical snipe hunt for what the drafters of a provision thought it should do. I share Scalia's disdain for that approach. The only approach that is more problematic than original intent is living constitutionalism.
It it difficult for me to read so much into these numbers, for two reasons. First, the total number of cases decided by the Court is roughly half what it was 30 years ago. Comparisons like this assume consistent measurements over time. Second, the Court decides what cases to hear for the most part, but that does not mean justices are able to cherry-pick based on ideology. They still have to deal with what the pipeline delivers for them to consider.
Thank you RWD....
I just read the entire Constitution and came to the exact same conclusion:
*********
Amendment IX [1791]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
**********
One thing can be said for those who originally conceived our United States of America and put words to the Constitution thereof:
They certainly had a good sense of "covering hindquarters"... as well as a seeming commitment to ambiguity.
Like all honored text, our Constitution is to this day -- open to interpretation. And, of course, interpretation is a product of personal belief, opinion, ideology....
When you know without a doubt that it is often difficult to have 2 or 3 people agree completely on any given issue, can you expect 9 to NOT have differing perspective.
Okay... how about 306 million?
God bless America, not perfect -- but a step in the right direction for sure.
Todd, your point strengthens, not weakens the argument: fewer contemporary cases makes the higher degree of federal invalidations all the more noteworthy. Your second point is valid, although considering how big the total "pipeline" is, as well as the signaling within opinions that justices give for litigants to "send them" certain kinds of cases in the future, I'm not sure they're as limited as you suggest.
If we're bringing up the tired adage that liberal activists "make up" new rights or constitutional arguments while conservatives merely follow the Constitution, perhaps a conservative would like to defend either 1) the Rehnquist Court's 11th amendment jurisprudence, which essentially amounts to "the Framers meant something other than what they wrote," or 2) the "structural federalism" argument, where the Court invalidates laws that interefere with their version of federalism, even though such vision is at best implied by the Constitution, and is certainly not part of its literal text.
The question is 'activist' for whom?
For instance, the Supreme Court ruled against Lilly Ledbetter and upheld, in a contorted (IMO) interpretation, a provision of a wage law.
Calling this decision 'activist' (as meant by the GOOPers), would not apply to this case. They did not overturn the law, but made an interpretation that most saw as antithetical to the intent of the law - i.e., to make it illegal to pay people with similar experience and duties to be compensated at different rates.
It took an act of Congress to overturn the 'non-activist' decision of the court.
The court decision that led to the Lilly Ledbetter Act would not show up in the chart Mr. Schaller produced, as it didn't overturn a law. However, anyone looking at the case would have to conclude that the inaction in the case is as activist (for corporations) as any decision actually overturning a state or federal law, or the voiding of a regulation.
Plus, the district court ruled in favor of the corporation (Goodyear), the appeals court ruled in favor of Ms. Ledbetter, and then the SCOTUS ruled, in effect, in favor of the corporation.
So 'activist' means ONLY overturning a statute? Or does it also mean overturning lower court decisions, state laws, local ordinances, and federal, state and/or local regulations?
Basically it might depend on which ox you perceive is being gored.
Another example - In Columbia, Maryland, a local ordinance prohibited property owners from erecting dishes to receive satellite TV signals unless the dish was concealed and not visible from the street or any other property. Doing such usually made the dish inoperative, as it couldn't receive a clear signal, thus there was no reception.
Eventually that ordinance was overturned in the courts (eventually the SCOTUS upheld the lower courts) on the basis that it interfered with many rights of the property owner, and was a direct violation of the Federal Communication Act. Activist court in that case? It upheld federal law, but overturned a local ordinance.
Add in that when the GOOPers use the term 'activist', they usually mean the court rules against 'bidness' interests (or their interpretation of the 2nd Amendment). The Columbia decision favored some corporations (satellite TV broadcasters and equipment providers), and disfavored others (cable TV companies and equipment providers), and where do we end up on the 'activist vs. non-activist' scale?
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Brian DePalma,
I have a question for you. Do Supreme Court Justices make wrong decisions?
In your interpretation of the constitution they must surely, in decisions that are anything other than 9-0. Whats the point of 9 justices if you aren't expecting disagreement over the law?
Also, consider how many of the terms of the constitution are poorly or vaguely explained in the document. Take the 8th amendment. There is no attempt to define 'cruel and unusual' punishments. I personally would suggest that Capital Punishment was cruel. And I would suggest that because you might get killed in one state but not in another, it is also unusual. Therefore it should be unconstitutional. But that is not written directly in the document. There is no attempt to define High crimes or misdemeanours other than treason or bribery. The way the constitution is written invited interpretation, and its my view that that was the intent of the framers. They understood that it would need to be a living document open to judicial interpretation in order to survive.
Bart:
Your argument is clearly well-intentioned but it could only come from a perspective completely unfamiliar with the psychology of concepts, language, or of linguistic ambiguity.
Here is a legal example from Steven Pinker's book, The Language Instinct. To quote:
From an insurance contract...
"Such insurance as is provided by the policy applies to the use of a non-owned vehicle by the named insured and any person responsible for use by the named insured provided such use is with the permission of the owner."
In this case, a woman was distraught over being abandoned in a restaurant by her date, and drove off in what she thought was the date's Cadillac, which she then totaled. It turned out to be someone else's Cadillac, and she had to recover the money from her insurance company. Was she covered? A California appellate court said yes. The policy was ambiguous, they noted, because the requirement with the permission of the owner, which she obviously did not meet, could be construed as applying narrowly to any person responsible for use by the named insured rather than to the named insured (that is, her) and any person responsible for use by the named insured"
The point is the sentence was completely objectively ambiguous from a linguistic perspective at the time it was written and the court had to make a completely subjective decision (regardless of whether you think it was correct or not, you must agree it was not objectively derivable from the wording of the policy). To determine the original meaning of the sentence we probably would have to do exactly the kind of historical snipe hunt you say is unnecessary.
The problem is a whole lot deeper than syntactic ambiguity though. Unfortunately for all of us, liberal and conservative alike, words just do not have well defined meanings, regardless of how much we might like them to. To say that a text has a uniquely objectively determinable meaning, by any standard whatsoever, is incorrect. There are a variety of reasons that I have no space or time to go into. If you are interested, look up the problem with word definitions, starting with the famous impossibility of defining "game". Look up also the role pragmatics play in language. Those are just starting points.
markymark said...
I have a question for you. Do Supreme Court Justices make wrong decisions?
All the time. To err is human and the absolute power of judicial review corrupts absolutely.
What's the point of 9 justices?
To help one another work through the often complex legal issues to arrive at a correct decision.
Also, consider how many of the terms of the constitution are poorly or vaguely explained in the document...The way the constitution is written invited interpretation, and its my view that that was the intent of the framers. They understood that it would need to be a living document open to judicial interpretation in order to survive.
You are coflating the generally worded procedural rights of due process, reasonable search and cruel and unusual punishment with the more precisely defined substantive portions of the Constitution.
As I noted above, the text of the Constitution grants the Congress and Judiciary wide latitude to apply their own policy preferences to set procedural rules. The only apparent textual limit to that discretion is that the rules be procedural. Judicial activists did away with even that limitation by inventing the oxyoronic fiction of substantive due process.
However, the text of substantive constitutional provisions are positive propositions that generally set forth the parameters of a power or right and are not invitations to courts to impose their own policy preferences.
The textual grant of discretion over procedural rules does not imply a grant of power to rewrite the text of the substantive provisions of the Constitution. The variations of opinions concerning substantive provisions of the Constitution should be analogous to the variation between baseball umpires' strike zones and not a rewriting of the strike zone rules themselves.
If the power is not enumerated or the substantive right is not enumerated or historically well established, The Constitution does not grant or protect it.
More for Bart:
On a similar vain, I'd just like to quote an obvious recent example of the SCOTUS ruling on a case based on the constitution, in case you want to claim something about my example above being irrelevant since it does not deal with constitutional law and was not a SCOTUS decision.
Here is a quote from the latest post by the webmaster of www.electoral-vote.com
"Consider, for example, the recent case of Savana Redding, a 13-year-old girl and honor student who was strip searched by her school nurse because a classmate said Redding had prescription-strength ibuprofen on her body. Prescription-strength ibuprofen is simply a pill with the same amount of active ingredient as two over-the-counter ibuprofen pills, which Redding could have legally brought to school. But the school has a policy of no prescription drugs in school without notifying the school nurse and said it was just enforcing its zero-tolerance-for-drugs policy. Redding was humiliated and her mother sued the school. Redding won the case and the school appealed to the Supreme Court.
Now here's the problem with the "robot theory" of Supreme Court justices. Suppose a justice is 100% committed to following the constitution so when the case hits, he or she Googles "United States constitution" and discovers the fourth amendment, which says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...
Great. So if this search was unreasonable, it was also unconstitutional but if it was reasonable, it was fine. Trouble is, the constitution doesn't spell out what is reasonable. The justices had to make a judgment call here based on their life experiences. If the nurse hadn't insisted on peeking inside her bra and panties, would that have been reasonable? Suppose the nurse had done a pat-down search, the way TSA employees pat down thousands of passengers at airport security checkpoints every day? Suppose the nurse had merely asked Redding to empty her purse and pockets but leave her clothes on? What if the suspected drug had been marijuana instead of ibuprofen? Suppose three students had incriminated Redding instead of just one? Would it have been any different if it had been a boy rather than a girl? What if she were a 7-year-old or a 17-year-old instead of a 13-year-old? The constitution doesn't say a damn thing. So each justice has to make up his or her own mind. That's why the argument that a justice has to put aside his or her own feelings and just follow the law doesn't fly: in these tough cases, the law doesn't say what to do. In this case, the court decided 8-1 (with justice Clarence Thomas dissenting) that the search was illegal, but who knows what it would have decided in any of the variant scenarios sketched above."
RomanF said...
Bart: Your argument is clearly well-intentioned but it could only come from a perspective completely unfamiliar with the psychology of concepts, language, or of linguistic ambiguity.
Here is a legal example from Steven Pinker's book, The Language Instinct. To quote:
From an insurance contract...
"Such insurance as is provided by the policy applies to the use of a non-owned vehicle by the named insured and any person responsible for use by the named insured provided such use is with the permission of the owner."
In this case, a woman was distraught over being abandoned in a restaurant by her date, and drove off in what she thought was the date's Cadillac, which she then totaled. It turned out to be someone else's Cadillac, and she had to recover the money from her insurance company. Was she covered? A California appellate court said yes. The policy was ambiguous, they noted, because the requirement with the permission of the owner, which she obviously did not meet, could be construed as applying narrowly to any person responsible for use by the named insured rather than to the named insured (that is, her) and any person responsible for use by the named insured"
I practice insurance law and it is one of the most fertile grounds for judicial activism. Insurance contracts are strictly construed against the insurer and courts rewrite the plain language of contracts all the time under the rubric of ambiguity to extend coverage.
Your note is a perfect example of such judicial activism. The California court's analysis is contrary to basic grammar.
The use of the conjunctive "and" between the two covered uses joins the uses and removes any ambiguity that the permission requirement applies to both uses.
If the insurer had used the disjunctive "or" between the two covered uses, then there may be some ambiguity as to whether the permission requirement on one side of the disjunctive applied to the covered use on the other side.
This is the only reason I can see to include a conjunctive in this sentence.
Then, of course, there is also the application of a modicum of common sense that no auto insurer has ever offered coverage for folks that drive off in someone else's car without permission.
And you wonder why your insurance rates are so high...
Bart DePalma,
If you think the Constitution is to be interpreted by its original intent, and absolutely nothing else, then answer a question, please.
Where in the Constitution, with or without Amendments, does it say that the Supreme Court can strike down a law?
I'm sure that you would agree that the SCOTUS can determine if a law is Constitutional or not, and if not, strike down that law. Then again, if you are such a strict 'Originalist', and no one can 'read into' the Constitution things that are not clearly stated, maybe you don't.
And/or another question - If the authors of the Constitution thought that the Constitution was such a perfect document, that all questions could be answered by reading the words with no interpretation, why did they include a provision that provided a means for amending the Constitution?
After all, if it was perfect, then it wouldn't need amending.
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Bart DePalma said...
the plain language of contracts
Are you telling us that the California insurance policy was written in plain language?
Why are people all the time told that they should have a contract reviewed by an attorney? If the contract was written in plain language, then 'the common person' would be able to understand every word, and the meaning of every word, along with the entire contract, and the meaning of the entire contract, without having to go to an attorney to see if the contract was or was not OK.
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Unfortunately, Bart, what seems like "basic grammar" to you (probably because you are already applying your judgment to the case) is genuinely lexically ambiguous. The sentence itself can be construed either way from a grammatical standpoint, and any linguist will tell you exactly that. I disagree completely that there would be no possible need for a conjunction if the meaning was what the justices interpreted.
Grammatically and even logically, the insurance policy could most definitely be that "the use of a non-owned vehicle by the named insured" is covered, completely seperately from "any person responsible for use by the named insured provided such use is with the permission of the owner". The last phrase in the sentence, "provided such use is with the permission of the owner" is ambiguous in terms of where it is placed in the syntactic tree of the sentence, and therefore also in which preceding noun phrase it modifies, if you want the technical reason for why it's grammatically ambiguous.
There are a million similar examples of lexical ambiguity, and Pinker presents a couple more, which might convince you better, I don't know. I'd recommend looking up his examples, since I don't feel like typing out the others here.
At any rate, the point is exactly that a "modicum of common sense", as you put it, needs to be applied. Looking only at the meaning of the words isn't enough for a good ruling. And I actually completely agree with you that the ruling in this case (from what little I know about it) seems to have been a bad one, precisely for reasons of common sense. But the point is exactly that "the meaning isn't in the words".
Bart DePalma states:
" If the power is not enumerated or the substantive right is not enumerated or historically well established, The Constitution does not grant or protect it.
July 16, 2009 6:02 PM "
*****
I respect this as your opinion. However, it is ONLY your opinion and not to be accepted as an absolute, by any means.
One flaw I find (granted, in MY opinion) in your reasoning is the "or historically well established" assumption you make.
One -- If we are to believe our country will move forward into the future and remain in adherence to the Constitution, we also have to understand that our history is continually being made.
Two -- Would you please ascertain a time period that makes something "well established" and if so, please show us a place in the Constitution that backs up this interpretation.
Thank you
.
I see your dilemma: you're letting them define your terms. Just call them REactivist Judges, or Reactionaries, for short, and it all makes sense.
Reactionary judges stalled the natural implementation and evolution of the Constitution for over a hundred years in this country. Then they were cleared off the bench, and the original intent began to be enforced and updated. Now we have the same time of reactionaries trying to roll it all back to pre-1776 or pre-1066 law. It's an attempt at a violent judicial overthrow of the US Constitution. And it's the same kind of people who tried to destroy the Union a hundred and fifty years ago.
Par Example: Sessions to Sotomayor: "DO YAWL HAVE ANY NIGRA BLOOD?"
.
nicvera211,
The windnuttery won't be able to ascertain a time period that makes something "well established".
After all, John Yoo stated that FISA, passed in 1974, that the little shrub administration violated to do wiretapping was "obsolete". So if a law that is now 35 years old (but even less 'aged' when Yoo wrote the memos that justified breaking the law) is obsolete, how can anything EVER become "well established"?
Makes me shake my head whenever the wingnuttery talks about laws being 'obsolete' (or defends someone who says such things [Yoo, Cheney, Gonzales, etc.]), and in the same breath talk about 'original intent' of the Constitution (which was proposed and adopted 221 years ago). Oxymoronic isn't even close to describing that situation.
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Gee, there was a typo near the beginning of my previous post. I called the 'wingnuttery' the 'windnuttery'.
Although on reflection, is there really a difference?
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
The only reason a computer cannot do this work is that no one has designed the software yet. Software for services like Legal Zoom are beginning to move seriously into areas that lawyers claimed only they were able to handle. I see no reason why this trend will not continue.
You obviously do not have the first clue about computation.
Computers are great at one thing: crunching numbers. Everything a computer does well boils down to number crunching.
What computers can't not do is exactly what you are suggesting. They can not, and never will(barring the extremely unlikely event of sentient AI) do is be able to read text and parse its meaning and then apply it to other text.
Even with advances in AI such as evolutionary algorithms, artificial neural networks, artificial immune systems, fuzzy logic, granular computing, etc, they are all still in the realm of number crunching.
Sending traffic over a network is a mathematical exercise, as is computing and rendering what you see on the screen, be it a web page or 3d animation, databases are highly mathematical in scope, etc, etc, etc.
Reading and comprehending text is NOT a mathematical exercise. Which is why spell and grammar checkers suck so badly.
Even if by some miracle a software system is devised that can interpret the law, they can never be pragmatic. What would happen is a "ruling" would come out that effectively makes everything legal, or worse, illegal. Human judges can foresee the effects of their ruling and can temper it with reason.
At best all a piece of software can ever do if push out boilerplate legal documents with a few extra options chosen that will always require the review of and editing by humans trained in the law. If the validity of that document is contested after it is signed, only a human judge will be able to rule on it.
It is almost incredibly amusing.
Conservatives seem to believe that decisions they don't agree with were pulled out of someone's butt, rather than being based on the law and on the Constitution. Conservatives seem to honestly believe we are a "center-right" nation (whatever that means). Conservatives seem to actually think they have a clue.
Yes, this is a snarky post. I'm old. My BS meter is quite sensitive. I don't have patience with as much nonsense as I used to.
Speaking as a linguist, I can affirm that RomanF is entirely right: the written law is rife with lexical and syntactic ambiguity. This is not a matter of ideology or opinion, it's simply a matter of demonstrable fact. Pinker's book is general, and so can devote only limited attention to the matter, but there is an extensive literature on language and the law showing this over and over again. See for example books by Roger Shuy, including his most recent, "Fighting Over Words," Oxford U. Press, 2007.
In a way we should be grateful to Bart DePalma for his contributions to the thread. He provides a textbook illustration of the conservative who considers decisions he doesn't like to represent judicial activism, not only in matters of national policy, but also in civil disputes involving the insurance companies he apparently defends.
BDP said
You are coflating the generally worded procedural rights of due process, reasonable search and cruel and unusual punishment with the more precisely defined substantive portions of the Constitution.
--------------------
So some parts of the constitution are of more value than others. Some parts need a strict textual reading, some parts are open to interpretation? You made a comment earlier in the thread about the right to bear arms, which actually given a strict textual reading of the constitution is anything but clear. After all the constitution seems to assume that the arms individuals are bearing are for use in a well regulated militia. The amendment saying 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed'. (odd how the pro gun lobby often ignore the first half). It seems to me that a strict textual reading of the constitution could easily allow for the banning of gun ownership, or at least require very strict regulation of it, and ban capital punishment. I dare say you disagree entirely, which is the point. Even a strict textual reading of the document must allow for interpretation, as I've shown.
To follow on, the other point is that the constitution as I said was designed to be interpreted. Note designed to be interpreted. Thats the point of 9 justices. To allow for debate and discussion of the interpretations, and to allow contemporary politicians to appoint those who they see as interpreting it as the people want.
The author apparently doesn't understand the meanings of "strict constructionist" or "originalist". When a conservative uses these terms, he or she means that the judge looks at the clear words and the original intent of the Founders when assessing whether a law or statute is constitutional or not. The judge would vote to overturn a law or statute only if it was not consistent with the original intent of the Founders. An "activist" judge would consider current trends in society, foreign law, and personal philosophy among other things and not just the original intent of the Founders when deciding whether or not to vote to overturn a law or statute and thus sometimes would disregard the original intent of the Founders. This is usurping the power of the Legislative branch and the States who are the only ones with authority to amend the Constitution. A "strict constructionist" or "originalist" would also interpret a law or statute in accordance with the original intent of the Legislature who passed the law or statute and not in accordance with what they think it should have meant. An "activist" would feel free to interpret a law or statute in order to best support their personal philosophy rather than the original intent of the Legislature that passed the law or statute. This, too, usurps the power of the Legislature.
Except that your 'scrict constitutionalists' regularly disregard the 10th amendment when it comes to socially conservative agenda items such as the 'war on drugs', abortion and pro business agenda items.
Tom,
I don't think you know what conservatives mean when they say an "activist judge" it has absolutely nothing to do with overturning laws, a strict constructionist can and should overturn laws that violate the constitution (for example had congress passed the DC congressional seat, a conservative would have no problem with the supreme court overturning it as it contradicts the constitution which specifically afford congressional representation to States). An activist court is one that makes up it own laws based on their own sense of justice, while ignoring the will of the people through the decisions of their elected representatives, WHEN THEY"RE IS NO CONSTITUTIONAL BASIS TO DO SO. Overturning laws that specifically run afoul of the constitution (from a strict constructionalist standpoint) does not a judicial activist make. I therefore don't see the point of your graphs or your post.
Buffalobill said
'A "strict constructionist" or "originalist" would also interpret a law or statute in accordance with the original intent of the Legislature who passed the law or statute and not in accordance with what they think it should have meant.'
-----------------------
I am assuming Buffalobill you support a 'constructionist' point of view? In which case I assume that you would support further regulation of the personal ownership of handguns? (see the point I made above). It certainly was not the intent of that amendment to allow a right to own a gun to be unquestionable. Or at least perhaps I should say I would not interpret that amendment as giving carte blanche for gun ownership. Of course you may interpret the amendment differently. But even that contradicts your opinion of how to interpret the constitution, as there are clearly two equally valid interpretations. The constructionalist point of view assumes that there must be one correct view, surely.
And, of course, by this same logic we'd still have Plessy v. Ferguson on the books, and no state-level protections for civil rights and liberties, and so on.
This misses the point, that that is the point, not a separate case. "Judicial activism" began as code for applying the plain text of the Constitution to the institutionalized racism of Plessy v Ferguson, resulting in the "Impeach Earl Warren" movement. It now includes the hot-button issues of the Christian Right. This is also the major part of the Right's complaints about "The Sixties".
What we are talking about here at bottom is the third assault on the South's Peculiar Institution:
1) The Civil War, ending slavery
2) The Civil Rights Movement, a century later, ending Jim Crow under Plessy v Ferguson
3) The Obama age, half a century later, ending...Well, we don't know what yet, but the South isn't having any, and Sotomayor is part of it.
It is no accident that the leader of the Congressional opposition to Judge Sotomayor is the Ranking Member (highest-ranked member of the minority party) of the Senate Judiciary Committee, Alabama Senator Jefferson [Davis] [General Pierre Gustave Toutant] Beauregard Sessions III, scion of unreconstructed Southern aristocracy. It has been widely noted that he was turned down for a judgeship by this very committee, for racist activities as a US Attorney.
Not that there was any hope of derailing the nomination, but they get props back home for all of this for the next election cycle. As long as their jobs are safe, they have no motivation to consider the public interest.
Back in stage 2, Dick Gregory joked that he was fired from the Post Office for putting mail to Alabama in the foreign slot. In terms of issues, the front lines have advanced, but the battle rages just as fiercely in many of the same places.
A very nice piece on the whole issue of judicial activism. This points out clearly that Republicans are trying to sell Americans an alternate reality, which is the idea that "activism"="liberal"="bad" and "objectivity"="conservative"="good". But, it ain't so.
http://meanlittlepoodle.blogspot.com/2009/07/judicial-activism-is-fact-of-life.html
Yes markymark...
A "strict constructionist" or "originalist" viewpoint as defined by BuffaloBill would indeed interpret the Second Amendment limiting the right of gun ownership to those in the "well regulated Militia".
This is further confirmed in the language of the Fifth Amendment where it states "...or in the Militia, when in actual service in time of war or public danger;..."
The point here is not that both amendments define gun ownership rights, but both do define "Militia". It is both well regulated -- a term that implies government/community oversight -- and an entity which "serves" in time of war or public danger.
There is no implication whatsoever that PRIVATE gun ownership is a sacrosanct right under the Constitution.
You will note that both of these amendments were offered and ratified together in the original amending of our Constitution - commonly called the Bill of Rights.
To all the 'strict constructionists', 'original intent' propagandists, 'anti-activist judges' bloviators, etc., I'll ask again a question I asked on Thursday:
If you think the Constitution is to be interpreted by its original intent, and absolutely nothing else, then answer a question, please.
Where in the Constitution, with or without Amendments, does it say that the Supreme Court can strike down a law?
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Another interesting point that springs to mind is that its the politicians on the right who complain about judicial activism who then circumvent the constitution somewhat by overstepping the 'advise and consent' rule of thumb on appointments. Seems to me that a member of the Judiciary committee has no place bringing up a speech Sotomayor has made, given that has no bearing on her qualifications to do the job, certainly compared to a weighty judicial record.
The notion of "liberal" versus "conservative" (aka "strict constructionist") philosophy is, I think, based largely on the common understanding that several of a handful of cases decided in the sixties and seventies changed the course of jurisprudence in important areas of the law dealing with the the scope of the protections afforded by the Bill of Rights and Fourteenth Amendment. Griswold v. Connecticut , Miranda and accompanying decisions and Roe v. Wade come to mind. But there are certainly more. Looking at the tilt of the justices in those cases, it is clear that both what by current standards would be called both "liberals" and "strict constructionists" signed onto those opinions. The debate about the scope of judicial discretion arises today from that handful of decisions supported by judicial conservatives and liberals alike. Statistics and charts don't do much good when attempting to classify judicial philosophies of individual justices confronting larger notions of what the Constitution allows when it is put to the test of dealing with the demands of fundamental social change. Some would like to undo or stop the social change already wrought both in practice and law. They may call themselves advocates of strict constructionism, but that is nothing more than dressing up a political philosophy in a legal theory. Great social changes come about well before they are recognized in law by courageous and even some cautious judges who see the need to look to the Constitution for ways of allowing society to change without creating or sanctioning disorder.
On the other hand the same "strict constructionist" group of justices to which the "conservatives" now look as proper models of strict constructionism rendered perhaps one of the most radical and lawless decisions since Dred Scott -- Bush v. Gore, based on the "radical" "left-wing" concept of voting rights under the Fourteenth Amendment having its jurisprudential origins in the Warren Court.
"The whole point of the Court is to rule laws unconstitutional based on justices applying their philosophical interpretations of the Constitution, and to reverse bad precedents when they recognize them. And the point of presidents nominating justices of similar ideological ilk is to put them on the Court to do just that."
I Am pretty sure all of the Founding Fathers would have disagreed with that interpretation. Its not a super legislature, nor was it ever intended to be. There is a process liad down by Blackstone for interpretation. Ideally justices would follow that.
That the Supreme Court is now treated as a super legislature is not in dispute. However, claiming that is the way its intended to be (regardless of which political stripe asserts it) is to miss the entire point of constituional government.
http://www.tsowell.com/judicial_activism.htm
"Great social changes come about well before they are recognized in law by courageous and even some cautious judges who see the need to look to the Constitution for ways of allowing society to change without creating or sanctioning disorder."
Its called an Amendment. Justices were never granted the power to change the constitution according to what changes the percieved in society. Really. Read The Federalist Papers. Read Jefferson, Madison, Paine, Washington, Hamilton, Adams. You can claim all you want that the Justices have this leeway, but the constitution, as ratified and understoond by the people, and as the fundamental social compact of the people, can only be legitimately changed by amendment, because only the people have the power to decide tochange the contract they are party to.
" it is rather easy to make the case that at least Jefferson - the author of the Declaration of Independence, and Madison - the "father" of the constitution, were liberals in many modern senses of the word. Certainly in their own time they were thought as much - with disdain by the "conservatives" Adams and Hamilton."
You apparently have never actually Read them. I would love to see you try to make such a case. Based on the actualy policies advocated, A modern "Liberal" is nearly indistinguishable from a Marxist. Do you agree with Madison that The primary purpose of government is the protection or property and that the "general welfare" clause grants no powers but merely indicates the intent of the enumerated powers. Seriously. The Founders were all conservative in the modern sense of the word.
Weisshaupt said...
The Founders were all conservative in the modern sense of the word.
And were considered the most radical of liberals in the last decades of the 18th/early decades of the 19th century.
And if you are comparing anyone to Marxism, how about backing up about 1800 years, to the early days of the Christian community in Jerusalem, where the guiding philosophy was 'give as you can give, receive as you need'. If you take Marx and Engel's Communist Manifesto down to it's very essence, isn't that what it also stated? Forget the dictatorial overtones that Lenin, Trotsky, Stalin and Mao put on modern Communism. Their Communism is as close to Marxian Communism as the Roman Republic was to the modern US republic - in fact, the modern US republic is actually closer to the Roman Republic than modern Communism is to Marxian Communism.
Ever study the history of St. Stephen, universally considered the first Christian martyr? Basically, his job was to gather all the resources of the Christian community, and then disperse those resources as they were needed throughout the Christian community. Sounds quite Marxian to me.
Mike in Maryland
My Blogger ID is http://www.blogger.com/profile/02848893412251095965
Just because the Chief Justice of the Court was liberal/conservative does not mean that the court was. For example, under Rehnquist there were 4 liberals (Stevens, Ginsburg, Souter, and Breyer), a moderate (O'Connor), a right of center moderate (Kennedy), and 3 conservatives (Scalia, Thomas, and Rehnquist).
Now conservatives can and are activists (Roberts has overturned numerous federal statues) but just because it was the Rehnquist court, you can't assume it was conservative.
Bart: if you go by the understanding of the law at the time the constitution was written, first-trimester abortions most definitely are an individual right. Blackstone's Commentaries: "Abortion prior to quickening can never be the subject of an indictment." The whole subject was considered entirely beyond the reach of any government, a matter to be decided by the individual only.
A片下載|成人影片下載|免費A片下載|日本A片|情色A片|免費A片|成人影城|成人電影|線上A片|A片免費看
米蘭情趣用品|情趣用品|情趣|飛機杯|自慰套|充氣娃娃|AV女優.按摩棒|跳蛋|潤滑液|角色扮演|情趣內衣|自慰器|穿戴蝴蝶|變頻跳蛋|無線跳蛋|電動按摩棒|情趣按摩棒|
艾葳酒店經紀公司提供專業的酒店經紀, 飯局小姐,領檯人員,領台,傳播妹,或者想要到台北酒店、林森北路酒店,私人招待所,或者八大行業當酒店PT,酒店公關,酒店兼職,想去酒店上班, 日式酒店,制服酒店,ktv酒店,禮服店,整天穿得水水漂漂的禮服酒店,鋼琴酒吧當酒店領檯,酒店小姐,公關小姐??,還是想去制服店當上班小姐,水水們如果想要擁有打工工作、晚上兼差工作、兼差打工、假日兼職、兼職工作、學生兼差、兼差、打工兼差、日領工作、晚上兼差工作、酒店工作、酒店上班、酒店打工、兼職、兼差、兼差工作、酒店上班等,想了解酒店相關工作和特種行業內容,想找打工、假日兼職、兼差打工、或晚班兼職想擁有快速賺錢又有保障的工作嗎???又可以現領請找專業又有保障的艾葳酒店經紀公司!
艾葳酒店經紀是合法的公司工作環境高雅時尚，無業績壓力，無脫秀無喝酒壓力，高層次會員制客源，工作輕鬆，可日領、現領。
一般的酒店經紀只會在水水們第一次上班和領薪水時出現而已，對水水們的上班安全一點保障都沒有！艾葳酒店經紀公司的水水們上班時全程媽咪作陪，不需擔心！只提供最優質的酒店打工,酒店上班,酒店打工環境、上班條件給水水們。心動嗎!? 趕快來填寫你的酒店上班履歷表
水水們妳有缺現金、有卡債、缺錢卡奴的煩腦嗎?想到日本留學日本打工嗎?妳是工讀生找工作??想要擁有高時薪又輕鬆的夜間兼職工作,打工機會和,假日打工,兼職工作日領假日打工的機會嗎??想實現夢想卻又缺錢沒錢嗎!??整天還在煩腦如何賺錢有什麼賺錢方法,和賺錢最快方法!?,想要打工,日領工作,短期打工,兼差工作,打工兼差工作嗎!?,
請加入我們艾葳酒店經紀公司工作單純輕鬆”高時薪”又可日領徵想要當傳播妹,上班小姐,酒店兼差,酒店兼職,歡迎學生打工,!!!
加入我們實現夢想就從現在開始^__^
酒店經紀人,
菲梵酒店經紀,
酒店經紀,
禮服酒店上班,
酒店小姐兼職,
便服酒店經紀,
酒店打工經紀,
制服酒店工作,
專業酒店經紀,
合法酒店經紀,
酒店暑假打工,
酒店寒假打工,
酒店經紀人,
菲梵酒店經紀,
酒店經紀,
禮服酒店上班,
酒店經紀人,
菲梵酒店經紀,
酒店經紀,
禮服酒店上班,
酒店小姐兼職,
便服酒店工作,
酒店打工經紀,
制服酒店經紀,
專業酒店經紀,
合法酒店經紀,
酒店暑假打工,
酒店寒假打工,
酒店經紀人,
菲梵酒店經紀,
酒店經紀,
禮服酒店上班,
酒店小姐兼職,
便服酒店工作,
酒店打工經紀,
制服酒店經紀,
酒店經紀,
菲
梵,
Post a Comment