Patterico's Pontifications

7/7/2005

How Leftists Like to Define Judicial Activism

Filed under: Judiciary — Patterico @ 7:20 am



Yale law professor Paul Gewirtz, who surely knows better, was caught on the pages of the New York Times yesterday claiming that “a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.”

This is an exceedingly silly definition of judicial activism. Was Justice Scalia acting as a judicial activist when he voted to strike down McCain/Feingold on First Amendment grounds? Would he be acting as a judicial activist if he voted to strike down a Congressional law outlawing flag burning?

Of course not. Activism occurs when judges stray beyond the text of the Constitution or a statute to fashion open-ended principles which they can use to strike down legislation whenever it offends them. Striking down laws that clearly offend constitutional principles is not activism. It’s what we want judges to do.

Yet leftists like Professor Gewirtz and Michael Kinsley are quite fond of defining activism as simply invalidating laws, without regard to their constitutionality. Why? Because it allows them to paint conservative judges as the most activist — as the Yale law professor’s analysis purports to do.

The analysis is filled with caveats that Professor Gewirtz will no doubt point to when he is justly criticized for his ridiculous piece. But if he truly took his caveats seriously, he wouldn’t have published the piece at all. The only reason he wrote it — and the only reason the New York Times printed it — was to give uncritical liberals a chance to take a cheap shot at some textualist judges. The professor should be ashamed.

P.S. Tom Maguire, QandO, and Orin Kerr also have criticisms.

20 Responses to “How Leftists Like to Define Judicial Activism”

  1. “Striking down laws that clearly offend constitutional principles is not activism. It’s what we want judges to do.”

    I have heard people argue that the entire concept of judicial review is ‘judicial activism’.

    actus (cd484e)

  2. Yeah, like Mark Tushnet.

    You might want to see where he falls politically, though.

    Angry Clam (f05866)

  3. […] Shocked aren’t you. This time it’s Michael Kinsley and a Lefty at Yake Law School. […]

    PrestoPundit » Blog Archive » More Dishonest Lefties? (d881ce)

  4. I have heard people argue that the entire concept of judicial review is ‘judicial activism’.

    Names, please?

    Xrlq (5ffe06)

  5. Tom Delay: “The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them.”

    more?

    actus (cd484e)

  6. You seem to be struggling with basic rules of logic. Let’s see if you can spot the fallacy in this example:

    1. The reason we have so much illegal immigration in this country is because Congress won’t stop it.

    2. The reason we drill so much oil offshore is because Congress won’t stop it.

    3. Therefore, illegal immigration is offshore drilling.

    So far you’re 0 for 1. Any real examples?

    Xrlq (ffb240)

  7. “You seem to be struggling with basic rules of logic.”

    You might have a point if the guy didn’t say that judicial review was something that the court took upon itself and which congress could stop. He’s clearly attacking judicial review as unsupported there. That to me seems like “judicial activism” under many definitions. I added the church and state one for context. I don’t think the proof is just in the equation, I think its in the substance of the judicial review quote by itself as well.

    I don’t think its that out of fashion in the right wing to talk about marbury as the court grabbing or granting itself power. At least to those people, striking down laws as unconstitutional would be an excercise in activism, because the power to do so is due to activism. I have no idea if actual thinking right wingers feel this way though. I’m sure DeLay, majority leader that he is, doesn’t really represent right wing legal thought.

    I don’t know how wacko Mark Levin is, but he echoes a similar sentiment in his Men in Black book. At least according to the blurb.

    actus (d1b91d)

  8. Like I told you, read Mark Tushnet.

    Marbury isn’t popular among a certain set of modern leftist constitutional law scholars.

    Angry Clam (f05866)

  9. Words mean sometning different to progressives than to regular folk. Thet is why we can not communicate with them; nor they with us. An activist judge is one that legislates, without having to be elected to office.

    Rod Stanton (7b6143)

  10. “Marbury isn’t popular among a certain set of modern leftist constitutional law scholars.”

    There are some more names for X.

    actus (d1b91d)

  11. Levin’s a fair example, as would be DeLay if he actually came out and equated judicial review with judicial activism, as opposed to merely pointing out Congress’s (Congress’?!) ability to curtail both.

    Xrlq (158f18)

  12. “as opposed to merely pointing out Congress’s (Congress’?!) ability to curtail both.”

    How can congress curtail judicial review if judicial review is proper?

    actus (d1b91d)

  13. There are tons of ways- restriction of jurisdiction to review comes to mind.

    And before you whine, note that Article III itself allows Congress to make any exceptions it wants from federal court jurisdiction.

    Angry Clam (f05866)

  14. “And before you whine, note that Article III itself allows Congress to make any exceptions it wants from federal court jurisdiction.”

    And the court would interpret article III.

    actus (cd484e)

  15. No, it is very specific. ” In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

    Congress can explicitly tell the Court to fuck off, and it would have no powers of judicial review.

    Also, it has long been recognized that the great power includes the lesser, and thus, because Congress has the power to create or not create lower federal courts, it also has the power to control their jurisdiction as much as it wants.

    Angry Clam (f05866)

  16. And the court would interpret article III.

    Aside from the fact the court has no authority to do that (which WOULD therefore be judicial activism), how does that connnect to your conclusion Delay was equating judicial review with judicial activism? If the Constitution clearly gives Congress the authority to curtail judicial review, which it does, then Delay was just stating a fact. Are you attempting some sort of convoluted logic whereby if the court invalidated article III Delay would say that was judicial activism and is therefore saying judicial review in general is improper? Or are you just trying to change the subject?

    Gerald A (dd601b)

  17. “If the Constitution clearly gives Congress the authority to curtail judicial review, which it does, then Delay was just stating a fact.”

    DeLay seems to think that congress can end judicial review, which is anethema to the concept of judicial review. Ergo, judicial review is activism. I think Delay thinks that this:

    “It is emphatically the province and duty of the judicial department to say what the law is”

    is judicial activism.

    actus (cd484e)

  18. So in other words, it’s entirely your supposition, rather than an actual position. That’s a fun game to play.

    I think the Democratic Party thinks that this:

    “From each according to their ability, to each according to their need”

    is a statement of foundational principles for their worldview.

    Angry Clam (f05866)

  19. “So in other words, it’s entirely your supposition, rather than an actual position.”

    On that specific quote, its a supposition sure. but its not too hard to see that delay thinks that judicial review is an improper power.

    actus (cd484e)

  20. And it’s not to hard to see that American liberals believe in Karl Marx, as I demonstrated with my attempt at your quotation game.

    Angry Clam (f05866)


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