Comments on FiveThirtyEight: Politics Done Right: "Conservative Activist Judge" is NOT an Oxymoron

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2009-10-12T04:03:00.469-04:00

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2009-09-06T03:35:20.181-04:00

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2009-07-22T03:57:10.058-04:00

Bart: if you go by the understanding of the law a...

2009-07-19T23:01:53.455-04:00

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.

Just because the Chief Justice of the Court was li...

2009-07-19T13:56:51.262-04:00

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.

Weisshaupt said... The Founders were all conservat...

2009-07-19T03:43:05.509-04:00

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

" it is rather easy to make the case that at least...

2009-07-18T22:47:37.108-04:00

" 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.

"Great social changes come about well before they ...

2009-07-18T22:34:15.788-04:00

"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.

"The whole point of the Court is to rule laws unco...

2009-07-18T22:30:12.310-04:00

"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

The notion of "liberal" versus "conservative" (aka...

2009-07-18T12:55:45.460-04:00

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.

Another interesting point that springs to mind is ...

2009-07-18T11:04:03.897-04:00

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.

To all the 'strict constructionists', 'original in...

2009-07-17T17:12:32.546-04:00

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

Yes markymark... A "strict constructionist" or "o...

2009-07-17T14:00:01.549-04:00

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.

A very nice piece on the whole issue of judicial a...

2009-07-17T13:36:40.344-04:00

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

And, of course, by this same logic we'd still have...

2009-07-17T13:02:00.057-04:00

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.

Buffalobill said 'A "strict constructionist" or "o...

2009-07-17T12:48:55.647-04:00

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.

Tom, I don't think you know what conservatives me...

2009-07-17T12:47:56.453-04:00

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.

Except that your 'scrict constitutionalists' regul...

2009-07-17T12:22:17.021-04:00

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.

The author apparently doesn't understand the meani...

2009-07-17T11:33:44.761-04:00

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.

To follow on, the other point is that the constitu...

2009-07-17T06:43:02.273-04:00

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.

BDP said You are coflating the generally worded pr...

2009-07-17T06:37:17.875-04:00

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.

Speaking as a linguist, I can affirm that RomanF i...

2009-07-17T02:03:07.503-04:00

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.

It is almost incredibly amusing. Conservatives se...

2009-07-17T00:14:44.049-04:00

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.

The only reason a computer cannot do this work is ...

2009-07-16T23:26:18.114-04:00

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.

Gee, there was a typo near the beginning of my pre...

2009-07-16T22:55:41.566-04:00

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