Monday, August 26, 2013

Judging activism in the Court

It's an often invoked term--"judicial activism"--yet one that lacks a very clear meaning in the minds of some. I spent some time discussing the phrase previously, along with the other one that goes with it, "legislating from the bench," because both are being roundly misused in service to ideological agendas. More often than not, the terms are called into service by the Left whenever the so-called conservative wing of the SCOTUS rules in such a way to overturn a law or a portion of a law. But such a usage is wholly incorrect. From my previous piece:
The basic idea is that the judicial branch should not be driven by policy and should not be engaged in policy-making, that it should accept the Constitution and the laws made by the legislature as they are, with regard to the original intent. Of course, there is a caveat: the Constitution is supreme, thus the implied power of Judicial Review, wherein the Supreme Court can determine the constitutionality of a law. For instance, the Constitution very clearly confers to the citizenry a right to "keep and bear arms," thus any law made by the legislature should not infringe on this right. If a law does, then it is the Court's duty to strike that law down. Simple, really. 
But this is not "legislating from the bench." It just isn't. It's the accepted and proper function of the Court, no more, no less.
Nor is such an action "judicial activism." Both terms refer to Court actions that engage in exactly the behavior forbidden to the judicial branch: making new laws. The Court can do this through the power of Judicial Review, it is true, but not by striking down what it deems are unconstitutional provisions in laws, but rather by expanding the meanings of laws already in place such that new power or authority is granted to the Federal Government.

Let's be clear about this. Assume there is a law or constitutional provision affording the government the power to do X. But government agents infer this law also allows them to do Y, because Y is similar in some respects to X. The actions are challenged in court by those adversely affected by the government's actions. Ultimately, the Court decides that even though Y is not explicitly allowed, it's somehow okay. This is justified by a convoluted legal opinion from the Court that ignores precedent and expands Federal power.

That is judicial activism. That is legislating from the bench. For what the Court has done in such a case is manufacture a new law (or laws) all on its own, a law that never was passed by Congress, that had never been codified anywhere, that exists only within a Supreme Court opinion, nowhere else.

Why am I bringing this up now? Because apparently the most senior "liberal" Justice on the Court doesn't comprehend any of this:
Justice Ruth Bader Ginsburg, 80, vowed in an interview to stay on the Supreme Court as long as her health and intellect remained strong, saying she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history"...

In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
Again, it is the job of the SCOTUS to "overturn" legislation that defies the Constitution. But in terms of her actual claim, I can't honestly say one way or the other if it is true. I seriously doubt it is, though. The Courts of the 1860's and 1870's, for instance, ruled against the government many times, certainly far more than the number of cases Ginsburg points to in her interview (that would be two, for those scoring at home). Ted Olson recently noted that most people "use the term 'judicial activism' to explain decisions that they don't like." It would appear Justice Ginsburg is using the term in exactly such a fashion, only in reference to decisions of which she does not approve.

Meanwhile, she has been a part of the real incidents of judicial activism, like the infamous Kelo decision in 2005. That decision required the Court to "reinterpret" the concept of a public good, in order to justify the use of eminent domain wherein the property of one citizen could be taken by the government, not for its own use, but in order to give it to another private citizen. It is worth quoting the brilliant dissent from Justice O'Connor in this regard:
Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.
In the past twenty-five years--at the very least--there is no other Supreme Court case I am aware of that goes farther, in terms of ignoring the Constitution and precedent, in order to justify an overreaching action by a government (in this case a local government). And in so doing, in redefining a previously clearly understood concept, the decision effectively creates a new law or power to be enjoyed not only by local governments, but also by state ones and the Federal Government itself. Judicial activism and legislating from the bench, to be sure.

But Ginsburg is worried about the activism of the current Court, with respect to its conservative members. Right.

Cheers, all.

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