Breyer and Scalia Debate Judicial Activism (long but a good read)

[rushmc 23]

http://www.washtimes.com/commentary/20051025-105707-5014r.htm

Judicial activism encounter
By John O'Sullivan
October 26, 2005


MELBOURNE, Australia.
Most legal reporters would burn their briefs to overhear U.S. Supreme Court discussions between Justices Antonin Scalia and Stephen Breyer, respectively the leading conservative and liberal minds on the court. They would additionally risk cruel and unusual punishments to sit in on a Scalia-Breyer debate on the hot topic of "judicial activism."
Yet a series of such debates took place over the weekend at a "Conversazione" jointly held by the universities of Boston, Oxford and Melbourne in the latter city. They were attended not only by some of the cleverest lawyers and historians from all three jurisdictions but also by lucky law students from Melbourne. And they may have detected a new intellectual tremor.
Sixty years ago "judicial activism" was definitely not a hot topic in countries belonging to the Anglo-American legal tradition. Division of responsibility was then clear: Congress or parliament made the law and judges interpreted it.
Then, 50 years ago in the U.S. the Warren Court began making laws on its own judicial authority. Thirty years ago Australia's high court followed suit. And in the last decade the British government -- the last stronghold of legislative supremacy -- passed a "Human Rights Act" that allows judges, in effect, to declare laws unconstitutional.
British judges have since exploited the HRA to prevent the authorities from deporting terrorist suspects or effectively controlling immigration.
Allowing judges to overturn, re-write and invent laws means that they become what Shelley called poets -- "the unacknowledged legislators of mankind." Nor is "mankind" an exaggeration. The very latest judicial trend -- Justice Sandra Day O'Connor is a particular devotee of it -- is to root legal judgments in foreign precedents from countries with constitutions very different from the one hammered out in Philadelphia, such as Zimbabwe.
Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. And they may hold very different opinions from the voters. As one speaker, Justice Dyson Heydon of the Australian high court, said in a public speech (the rules do not permit direct quotes from the Conversazione) some years ago:
"When judges detect particular community values, whether in the Australian community or the "international community," as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold."
Indeed, given the decisions of the U.S. Supreme Court on such matters as racial preferences -- in which the court has consistently imposed "mainstream" solutions opposed with equal consistency by large majorities of American voters -- there is no doubt that U.S. judges are guilty of exactly that confusion.
Nor did their confusion end there. Those at the Conversazione favorable to judicial activism responded with two arguments. The first was that judicial activism did not really exist. It was a misleading or useless category of analysis and grossly exaggerated the trivial extent to which judges invade the sphere of elected politicians.
The second held that judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe -- a necessary restraint on the potential oppression of minorities by majority rule, no less.

With lawyerly brilliance, some speakers even managed to combine both arguments: it was both vacuous and vital.
Neither argument is persuasive. A federal judge who levies taxes in order to achieve equal educational outcomes across a state is doing something that unelected and irremovable judges simply cannot do in a genuine democracy. To coin a phrase: No taxation without representation.
Equally, if the judges have the power to override the majority in order to defend minority rights, what is to prevent them using that power to oppress both majorities and minorities? That is not a hypothetical point. Nazi oppression in 1930s Europe was greatly assisted by the fact that the judiciary, the bureaucracy and other non-democratic elements in the German state were much more supportive of Hitler than the voters as a whole. Hitler never gained a democratic majority.
Moreover, under the rules of the democratic game, majorities can become minorities overnight in an election, whereas the rules of the judicial game insulate judges from popular disapproval. Justice Heydon again: "Judicial rascals are not to be thrown out. Political rascals can be."
That is fine as long as the judicial rascals confine themselves to applying and interpreting laws passed democratically by others. It becomes intolerable if they start making laws up on their own.
These arguments were vigorously batted back and forth. But the debate moved to more subtle distinctions when Justices Scalia and Breyer delivered their lectures (which will be published in due course.) Both men plainly like each other. Each cross-examined the other in witty exchanges. And they narrowed the difference between their positions considerably.
In particular, Justice Breyer accepted that it was desirable to restrain the dragon of judicial "subjectivity" that Justice Scalia would slay by requiring judges to interpret the actual words of the law or Constitution.
It was, however, a modest and deceptive concession. As Justice Breyer argues in his new book "Active Liberty," the "originalist" or "literalist" approach recommended by his opponent has its own problems of subjectivity: "Will canons of interpretation provide objective answers? One canon tells the court to choose an interpretation that gives every statutory word a meaning. Another permits the court to ignore a word . . . if otherwise the construction is repugnant to the statute's purpose."
This is a fair point. Some element of subjectivity is inseparable from legal and constitutional interpretation. Otherwise law enforcement would be a merely practical activity with little or no intellectual content. What is vital if judicial tyranny is to be avoided, however, is to narrow the scope of subjective interpretation as much as possible. And a judicial philosophy that allows the judge to draw upon a wide range of considerations in interpreting the law -- not excluding, let us recall, foreign precedents and constitutional declarations -- will in practice enable him to legislate rather freely under the guise of sophisticated interpretation.
Fortunately, the subtle distinctions and narrow scope of the Scalia-Breyer debate suggest that judicial activism is now on the defensive; unfortunately, with champions as skilled as Justice Breyer, it still has a great deal of fight left in it.


John O'Sullivan is editor-in-chief of the international affairs magazine, the National Interest.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[PhreeZone 20]

This was long on the writers opinion and extremely short on facts or even a single quote from the "debate" Only general sweeping comments on the type of arguements that were offered not a single specific detail.

What should I expect since its in the Commentary section?

Yesterday is history
And tomorrow is a mystery

Parachutemanuals.com

[rehmwa 2]

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This was long on the writers opinion and extremely short on facts or even a single quote from the "debate" Only general sweeping comments on the type of arguements that were offered not a single specific detail.

What should I expect since its in the Commentary section?

True it was opinion and not reporting. What do you think of the opinions? The opinions resonated with me.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[rushmc 23]

OK, so you think it is . I never said it was fact. I only thought is a good read and that the opinions of those on the court would spark some debate here.

It seems that I may have tweaked you somehow by posting this here?????

What do you think of the opinions in the article? Do you believe judicial activism is a problem in the US.
What bothered you about the article? (even if it is just comentary)

As for me..........I did not know that facts were a prerec to posting here............

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[PhreeZone 20]

What bothered me is the dropping of two Justices names in the title of the article and then only briefly mentioning what the whole title was about. Journalism 101 taught me to title my articles as a summary of them, not as a ploy to get readers for them.

This is my views on most reporting websites and TV shows. They push opinion and commentary as "news" but they just agrue a point instead of presenting any facts to allow the reader to draw their own opinions. Fox's primetime is a great example of that in TV but CNN, Washington post, NYT, etc all do it also. They thinly mention its "opinion" or "Commentary" or something else but those articles are extremely thin on their facts and just serve to further the political agenda of the writer/publisher/broadcaster. Off topic here but I have wondered if FoxNews would be willing to bump their 2 primetime shows (O'Riley and Hanity/Combs) for a breaking news story or if the ratings from those 2 shows are more important to them. CNN is just as bad with Larry King and similar shows. Headline News is about the only thing exempt from the ratings craze I think.

Activisim is only complained about when it goes against your views. The left has no issue when it supports their cause but this causes the right to complain about "making new laws from the bench". The right is thrilled when it goes their way but the left is now mad since "they did not consider the context". Both sides have a laundry list of excuses they can use to argue against a ruling they did not like, but in the end it just boils down to someone not being happy and throwing a temper tantrum.

Yesterday is history
And tomorrow is a mystery

Parachutemanuals.com

[rushmc 23]

The attached link clearly show commentary. The two names have been in the news as has activism. Many of the threads I have been posting too have covered the topic as well.

As for the title those two are the main topic of the "article" and there is no indication that this is news or fact.

For your activism comment. I think a court is out of control if either the left or right is unhappy. Activest judges are dangerous PERIOD.

I believe that something else about this post is bothering you but don't blame it on me.......

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[GTAVercetti 0]

I said it once and I will say it again (you is the general you):

Activist judges are those who INTERPRET the Constitution in a manner you don't approve of while a good judge is one who interprets it in a way you favor.

Are their judges who try to create law? Sure. But not NEARLY as many as the right would have to believe. Much of the "activism" is merely clarity of already granted rights.

But please, let us refer to the thread that touch on this EXACT same subject and look at all the comments there.

Why yes, my license number is a palindrome. Thank you for noticing.

[rushmc 23]

Your deinitions I agree with. What is happening I don't.

The right just complains more because more of the laws being "written" support thier beliefs.

What they can't accomplish at the ballot box they try to change in the courts!

How many times (especially out west) has a court stepped in and overturned the will of the people? Many times.

Example, in Californial, the people voted to stopped giving governemtn aid to illegals in the state. The court overturned that based on some bullshit they read into some constitution. You can't call that "interpitation" (as you like to call it)

Seperation of Church and state as it stands today did not come from any "interpitaion"

The second example can and will be debated, the first one......well, I can't see how that one can be defended

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[GTAVercetti 0]

You are right....that is why I said there are SOME judges who try to change the law.

Why yes, my license number is a palindrome. Thank you for noticing.

[tso-d_chris 0]

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Example, in Californial, the people voted to stopped giving governemtn aid to illegals in the state. The court overturned that based on some bullshit they read into some constitution. You can't call that "interpitation" (as you like to call it)

It is exceedingly difficult to take your posts seriously when you use phrases like "some bullshit they read into some constitution." I know of no state where a ballot initiative overrides the state or federal constitution, except such ballot initiatives where the people actually vote to amend the constitution.

You keep complaining about how the judicial system works as designed, independent of public opinion.

[lawrocket 3]

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Activist judges are those who INTERPRET the Constitution in a manner you don't approve of while a good judge is one who interprets it in a way you favor.

Actually, I'll be a bit more precise. Activist judges are judges who INTERPRET the Constitution in a manner that is inconsistent with with prior interpretation, either by overturning previous law or finding new protections where none wer found previously.

There is a legal doctrine called stare decisis in the common law court system. It means, "let the decision stand." When the SCOTUS makes a decision reversing its stance on a subject, it is by its very nature ACTIVISM. That is, judges creating new law by establishing their own precedents and reversing old ones.

Nowadays, strict constructionists would be the activists. Constructionists ran the court until the early 1900s. In 1905, the SCOTUS's infamous (not just famous, IN-famous) Lochner decision found that laws limiting working hours were unconstitutional because it found an implicit right to contract in the due process clause. The Lochner decision was hated by the Populists. This was an activist decision.

Of course, the exact same type of activism was used (actually by the same substantive due process clause) to find rights of privacy, marriage, procreation and abortion, to name but a few. These decisions were similarly activist.

Of course, to change these decisions back to the orginal thinking requires activism. Clarence Thomas and Antonin Scalia are great examples of anti-activist activists. Kinda like an anti-missile missile.

My wife is hotter than your wife.

[rushmc 23]

OK, so where in the states constitution does it say that the state has to provide state aid to illegals?
Then where does is say that even if the people vote on it the court and overrule the people even when the issue is not constitutionaly protected?

Your post is the one that is hard to take seriously.

Look here are what some consider to be errors of the court
http://www.judicialamendment.com/CourtErrors.html

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[tso-d_chris 0]

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so where in the states constitution does it say that the state has to provide state aid to illegals?

I don't know; I'm not from California, and haven't studied their constitution. The point is not relevant, anyway. A more pertinent question would be does California's state constitution allow a (non amendment related) voter initiative to override the state constitution.

[rushmc 23]

No is doen't. My point exactly.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[tso-d_chris 0]

From your source:

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In 1833 the Supreme Court had ruled that the Bill of Rights did not apply to the states.

What your source fails to mention is that in 1866, the Fourteenth Amendment was ratified, which overrides that Supreme Court decision.

[lawrocket 3]

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How many times (especially out west) has a court stepped in and overturned the will of the people? Many times.

Hey, I'm a libertarian, but the court's job is to act as a barrier against the "will of the people." Since the will of the people can become "mob rule" it's probably for the best that there is a barrier there. Mob rule frightens me more than judicial tyranny.

My wife is hotter than your wife.

[GTAVercetti 0]

Quote

Quote

Activist judges are those who INTERPRET the Constitution in a manner you don't approve of while a good judge is one who interprets it in a way you favor.

Actually, I'll be a bit more precise. Activist judges are judges who INTERPRET the Constitution in a manner that is inconsistent with with prior interpretation, either by overturning previous law or finding new protections where none wer found previously.


Of course, the exact same type of activism was used (actually by the same substantive due process clause) to find rights of privacy, marriage, procreation and abortion, to name but a few. These decisions were similarly activist.

Of course, to change these decisions back to the orginal thinking requires activism. Clarence Thomas and Antonin Scalia are great examples of anti-activist activists. Kinda like an anti-missile missile.

So you have someone interpreting things different than someone else. Go figure.

So wouldn't a constructionist take away the right to abortion AND the right to privacy? After all, if they were both done under the same type of activism, then a constructionist should remove both.

And how is the court FINDING rights? Isn't basis of the constitution, particulary the 9th amendment such that other rights are already ours and that SCOTUS merely clarified them to those who opposed?

mmm, I love a complicated issue.

Why yes, my license number is a palindrome. Thank you for noticing.

[tso-d_chris 0]

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No is doen't. My point exactly.

I misunderstood your point. I thought you were upset that the court decided that the state constitution overrides a voter initiative.

So what you are claiming now is that the court was indeed correct? Okay.

[lawrocket 3]

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From your source:

Quote

In 1833 the Supreme Court had ruled that the Bill of Rights did not apply to the states.

What your source fails to mention is that in 1866, the Fourteenth Amendment was ratified, which overrides that Supreme Court decision.

Correction - the SCOTUS has had a series of decisions that found that the 14th Amendment incorporated Constitutional rights to the state level. However, don't make that blanket statement. No court decision has incorporated the 2nd or the 8th amendments to the states. At least not yet.

My wife is hotter than your wife.

[rushmc 23]

NIce twist.

The court overturned the vote. If you can show me, in any constitution, (US or any other state) where illegals have a right to US taxpayer money (in the form of food stamps or any other giveaway program) then I will agree the court was correct.......

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[tso-d_chris 0]

Quote

The court overturned the vote.

The court decided the vote conflicted with the state constitution. If the people want to make the changes, they need to amend their constitution, as the system is designed.

[rushmc 23]

Nice try........

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

How about we turn this one around.

-----------------------------------------------------------
So wouldn't a constructionist take away the right to abortion AND the right to privacy? After all, if they were both done under the same type of activism, then a constructionist should remove both.
-----------------------------------------------------------
What would you think if this happened?

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[tso-d_chris 0]

Quote

Correction - the SCOTUS has had a series of decisions that found that the 14th Amendment incorporated Constitutional rights to the state level. However, don't make that blanket statement. No court decision has incorporated the 2nd or the 8th amendments to the states. At least not yet.

According to Wikipedia (with no controversy noted):

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At the present, the Supreme Court has held that the due process clause incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials.

If it is incorrect, would you be so kind as to correct all the others who have written it.

[tso-d_chris 0]

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Nice try........

Nice counter-point.