Tuesday, September 06, 2005

Activist judges!

I've been doing some thinking about the whole "activist judge" issue. I was greatly enlightened by the discussion beneath this post, and I've come to a conclusion: I agree with the conservatives that judges should not overstep their office. They do not make laws. HOWEVER, this has to come with a caveat, so the question is simply moved up a level: at what point do we ALLOW judges to legislate from the bench? standingout hooked me up with this valuable paragraph from the Lawrence v. Texas hearing:

Thomas wrote a separate opinion in which he found the Texas law "uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." He said that if he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no guarantee of privacy contained within the words of the U.S. Constitution.

Fair. I admire his integrity, and this was not a life or death issue. But let's say that some issue comes before the judges that is, and that their ruling, if staying with the binding document, would be a great injustice. I'll raise the stakes: pretend everyone agrees that A) to uphold the law would be Constitutional, and B) to uphold the law would also do harm to someone involved in the case--assume we're talking about a lynching law at the state court level that's written into the state's constitution or something like that. Aren't the judges morally bound to legislate from the bench, in this case? And if they are, then the principle can't be "don't ever legislate from the bench"--it would need to be more nuanced. Right?

15 Comments:

At 11:04 AM, Blogger StandingOutInTheCold said...

I don't think that the argument you present is as clear-cut as it seems at first. If we start making exceptions for "moral obligations" of the Justices then they start to not only legislate from the bench, but legislate their personal moral convictions. At what point is a moral conviction strong enough to overcome the Constitution? Many people have very strong moral convictions that abortion is wrong -- should the bench, based on that conviction alone, make abortion illegal? The correct response in a situation like the one you suggest is from the legislature, and it is with them that the moral obligation lies. It is the moral obligation of the state's people and legislation to amend their constitution to be morally sound. That failing, it is up to the Legislature to amend the Constitution to override that state's constitution, as with the 15th amendment which allowed people of all races to vote no matter what their states may say. If the Court is allowed to overstep its bounds, even in matters of life and death, then the balance of power has been tipped and upset. It will be up to the discretion of the Justices to decide what is morally objectionable enough to dictate law. Its not the Court's job or place to decide things like that. The Court is there to decide what is legal and what is not. If something morally reprehensible is legal then it is up to the people and the legislature to change it, not the Court. The will of the people reigns unless specifically denied by the Constitution, and even then with an amendment thereof.

 
At 5:43 PM, Blogger RedHurt said...

No, I don't think it would need to be more nuanced. If it's in the constitution, it's his duty as a judge to uphold it. That being said, I can't think of ANY "life or death" situation in which this sort of case could possibly happen. I can't accept your 2 conditions - I think the entire point of our judicial system and the constitution itself is so that such a situation cannot exist.

Yet, for the sake of disgusting hyperbole, let's pretend it happens. In such a case, I think the judge is bound to rule neither for or against, but set the case in limbo and put the issue before the legislative branch. If the legislature finds that the law is just and the judge still believes the contrary, it's his moral duty to not enforce the law by stepping down from his position as a judge - not by abusing his position. He doesn't have to condemn himself by enforcing a law he feels is morally unjust, but in his role as a judge there is absolutely no room for allowing his personal scruples to override the expressly written law of the land.

 
At 10:32 AM, Blogger J. Morgan Caler said...

Maybe y’all could help me figure something out: what in the hell is “legislating from the bench?” What does that even mean? I would appreciate someone finding an example of that happening as an aid to my ignorance. That said, I cannot even conceive of a situation in which there is any mechanism in place to allow such a thing to happen.

redhurt said, “...there is absolutely no room for allowing [the judge’s] personal scruples to override the expressly written law of the land” as if a) those two had nothing to do with each other, b) the law of land is crystal clear and is evident in its meaning and application, and c) judges aren’t citizens who have been socialized to have American legal ideals. Look, we don’t want robots deciding what the law is. As a result, we have to understand that interpretation and personal outlook are inseparable realities. We have human beings who are citizens of our nation write and interpret our laws; that has certain implications.

So, not only do I not know what you are talking about, I have no idea what you think would be a better system. Someone please help.

 
At 12:11 PM, Blogger StandingOutInTheCold said...

Leislating from the bench is exactly what Charles has proposed here: something is Constitutional and made into law by the appropriate body but the SC strikes down the law because it is immoral or wrong. The law may indeed by a bad law that should be changed, but the SC has no right to do so unless the law is unconstitutional. The Texas sodomy example is a great one of the SC overstepping its bounds. There is nothing in the Constitution that says citizens are guarateed privacy if they are committing crimes. But many SC Justices think that violating privacy is immoral and unjust and therefore privacy must be protected. If you can show me anywhere in the Constitution where privacy is even implicit then I might concede that this is a bad example, but I can't find any such statement. Anyway, the Justices struck down a law that ought to have been changed, but not by the SC. Thomas had it right -- its a bad law, it ought to be changed, but its within the bounds of the Constitution and therefore the SC has no right to touch it. It should have been changed by the legislature. And if the principle the law embodied ought to be illegal then an Amendment to the Constitution needs to be made so that the law is no longer Constitutional. That is again a legislative action that has to be taken by the legislature. The reason that the system is this way is because the SC answers to no one. The legislature and executive branch answer to the people. As long as something is within the bounds of the Constitution then it is up to the people to decide whether it should be a law or not, so those that answer to the people are the ones that get to make the laws. The SC exists to make sure that the people don't step outside of the bounds of the Constitution. They are like referees, nothing more. Yes, they are citizens with their own morals and concerns. But they still get to vote just like everyone else and that is where they should be expressing their personal views. On the bench they should only be deciding whether a law violates the Constitution, regardless of whether it is a good, bad, or even evil law.

 
At 12:01 AM, Blogger RedHurt said...

j. morgan, you know exactly what we're talking about, even if you have good points to make by acting ignorant.

I KNOW it's oversimplifying things to say that a judge or any of us could choose between his opinion and that of the court. If that's your point, consider it taken.

Otherwise, I'm sure you can imagine the situation in which a judge has an opinion which is somewhat different than the written law he's told to upheld. Consider simply a judge who personally believes that capital punishment is never acceptable. Let's then suppose that a serial killer is convicted, that all of the evidence is concretely against the defendent, and the case is given to this judge. Let's assume this takes place in Texas, where capital punishment is legal, and that the crime is so henious that under Texas state law it clearly merits the death penalty. The judge has two acceptable courses of action:
1.) Sentence the defendent to death, despite his own moral misgivings with the notion.
2.) Refuse to sentence the defendent at all, citing that his personal beliefs contradict the law he's sworn to uphold.

What is absolutely not acceptable is:
3.) Refuse to sentence the defendent to death, citing that capital punishment is always unjust, and instead assigning a lesser sentence.

This is an excellent example of a judge whose personal beliefs contradict the law and where the law is clear. This isn't the best example of legislating from the bench, but you get the idea.

A better example of "bench legislation" is the emminent domain case from earlier this year.

I've written this comment to humor you - I have absolutely no doubt in my mind that you knew exactly what everyone was talking about in the first place.

 
At 12:03 PM, Blogger J. Morgan Caler said...

Standingoutinthecold and rehurt, I am going to take up one of your examples to explain why I disagree with you both. Now, you all seem to be saying, to quote standingoutinthecold, that “legislating from the bench” is when “something is Constitutional and made into law by the appropriate body but the SC strikes down the law because it is immoral or wrong. The law may indeed by a bad law that should be changed, but the SC has no right to do so unless the law is unconstitutional.” Okay, so, as I understand it, that is your argument. Now, here is what I don’t see:

1) I don’t see that this is in any way legislating. If anything, it is un-legislating. Legislating from the bench would mean passing laws that are either affirmative or prohibitive, something for which there isn’t even a mechanism in place. The court simply does not legislate because they cannot.
2) I don’t see that the justices believe that something is Constitutional and yet immoral or wrong and so go against their reading of the Constitution in favor of their views about morality. That doesn’t happen. You are making too fine a distinction between moral and legal reasoning. Justices think something is immoral because it is unconstitutional and vice versa. It is impossible to separate these two.
3) I don’t see that the Constitution (or any document for that matter) clearly states anything apart from the interpretive work of the reader. Nothing is “clearly” anything. Everything is subject to interpretation. The Constitution does not clearly prohibit or allow anything, it does so within deep contexts and through complicated processes of interpretation.

As an example, I am going to quote from Lawrence v. Texas (aka the butt-sex case):

“The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra. At 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

So, let me tell you what I think is and is not going on here:

1) I don’t think the Justices are saying, “this law is immoral, but damn it, it sure is Constitutional! Well, I guess we are going with the morals this time and to hell with the Constitution...” That is not what is going on. Their sense of what is moral and immoral is tied up in their sense of what the Constitution is saying!!! You cannot get around that.
2) They are reading the document in a fundamentally different way than Scalia, who dissented. They aren’t disregarding the Constitution and they aren’t trying to do the job of the legislatures; they are reading the Constitution and “saying what is law” as they understand it.
3) I don’t see anywhere in here that they are legislating. I see that they are judicative (potentially in an objectionable way), but I don’t see any legislative function being exercised at all.

So, let me tell you what I think about the “legislating from the bench” talk:

1) It is conceptually bankrupt. It doesn’t mean anything. It is an impossibility that has an alarmist ring to it, which is why “Conservatives” use it.
2) Nobody actually thinks that the Justices are disregarding the Constitution and so that isn’t the real objection. The real object is to the Justices interpretive framework and philosophy. What “Conservatives” are really saying is that they prefer a “strict authorial intent” reading (a la Scalia) to a “reader-response, living document” reading (a la Kennedy).

 
At 1:26 PM, Blogger CharlesPeirce said...

j. morgan, while I agree with 99% of what you're saying, we could still find cases where standingout's examples would hold.

Unlike the US Constitution, in state constitutions there are clear, and clearly insane, provisions. In fact, under Alabama's constitution I believe schools are still officially segregated. standingout and redhurt would have judges either uphold the law or recuse themselves and allow the legislature to change it; you wouldn't. That's why my POST boils down to:

"How insane does a law have to be before we let a judge strike it down, EVEN IF it's clearly constitutional?"

redhurt, you contradicted yourself:

1) I can't think of ANY "life or death" situation in which this sort of case could possibly happen.

2 "I'm sure you can imagine the situation in which a judge has an opinion which is somewhat different than the written law he's told to upheld. Consider simply a judge who personally believes that capital punishment is never acceptable. Let's then suppose that a serial killer is convicted, that all of the evidence is concretely against the defendent, and the case is given to this judge."

 
At 1:28 PM, Blogger CharlesPeirce said...

redhurt, I know you're going to say "I didn't contradict myself," so if there is a subtle distinction in your two comments that I missed, I'd be more than happy to have it explained to me.

 
At 1:40 PM, Blogger CharlesPeirce said...

After having it explained to me, the subtle distinction is that the lynching case probably would never happen; whereas in the capital punishment case everyone agrees on what is constitutional ("killers will be executed") but NOT on what is moral. redhurt, I retract my statement about you contradicting yourself.

In other news, my word verification has my initials in it, consecutively. Sweet.

 
At 1:41 PM, Blogger RedHurt said...

no, I'll agree - I DID contradict myself. The reason I'd say the cases are different was your caveat that "everyone agrees" and then later saying we want the judge to rule on his morals and not in the letter of the law.

 
At 1:52 PM, Blogger RedHurt said...

j. morg: great comment. I agree with most of what you're saying.

The supreme court is designed to serve as a check on the legislative branch. It is their unique, specific and designed power to have the right to rule certain laws unconstitutional, and striking these from the books. Thus, it is never "legsilating from the bench" when a justice declares a law "unconstitutional" and rules against it.

While interpreation of the constitution is indeed inherent in perceiving it's meaning, I think what conservatives are really upset with is when a particular judge takes a wildly different opinion than the accepted interpretation of the constitution and rules based on that. This is what we've been referring to as a "personal belief". Your quite right that this distinction is very weak, and further conversation toward it probably useless. I admitted earlier that we were dealing with an oversimplified situation - that's what's over simplified about it.

But to get back on track - legislating from the branch is not the negative action of striking down existing laws, but rather the positive action of expanding current laws in ways that vastly change their application. In theory it would mean creating new laws, but I don't know of a case in which this was done. In application, it means enhancing a law to include such larger application that it becomes more or less a new law. An example for this, as I pointed out before, is emminent domain. In the past, states had the right to annex property to build roads or if the area was condemned. The court ruling enhances this power, giving state governments the right to bulldoze your house if they can in any way justify it's being for the public good. That's a gross extension of the existing law, and basically constitutes new legislation.

That being said, I absolutely agree that the term has an alarmist quality to it. Conservatives use it as a rallying point and a mindless term to increase sentiment against liberal judges. In that application it's intellectually bankrupt, but not universally so.

 
At 5:18 PM, Blogger StandingOutInTheCold said...

I agree that the Justices cannot literally legislate. But it is a valid figure of speech that indicates that the Justices are affecting laws in the way the legislature is supposed to rather than the way the courts are supposed to. I understand that there is nothing a Justice can have except their interpretation of the Constitution. But it is not uncommon for me to have an interpretation of something and then have my own feelings about the subject seperate from my interpretation. I may interpret the Constitution to mean something that I think is stupid or wrong. If I'm a judge then I'm obliged to stick with that interpretation -- an analysis of the text that is as unbiased as possible -- even though I think it should be a different way. If I'm in the legislature I am not obliged to do this, I am obliged instead to amend the Constitution so it is no longer stupid. When Justices fix stupid things in the Constitution they over step their bounds.

 
At 9:35 AM, Blogger J. Morgan Caler said...

Standingoutinthecold:

“But it is a valid figure of speech that indicates that the Justices are affecting laws in the way the legislature is supposed to rather than the way the courts are supposed to.”

Give me one example of this happening that we can agree on and I will start www.j_morgan_against_activist_judges.org. Judges are charged with determining what the law is. I think that can entail expansion of application if the judge thinks that the law is a statement of principle that was formulated with a specific application, but not with the fullest extent of that principle encompassed by that application. So they are not legislating in any way; they are interpreting!!! I don’t think it is a valid figure of speech. So, give me an example that anyone could agree on so that we can hash this out.

“But it is not uncommon for me to have an interpretation of something and then have my own feelings about the subject seperate from my interpretation.”

That is most likely due to your understanding of what interpretation is and what documents mean.

Redhurt:

“In theory it would mean creating new laws, but I don't know of a case in which this was done. In application, it means enhancing a law to include such larger application that it becomes more or less a new law.”

Okay, that is the clearest and most succinct articulation of what Conservatives are upset about. I think that is a real step forward in terms of how the Right should be phrasing their objections. I would say, though, that, again, this is a matter of how one understands the nature of written laws. Are they exclusively applicable to the circumstances for which they were written to address, or are they principles couched in a specific debate that needs to be applied as situations arise that demonstrate a similar set of circumstances.

Charles:

To answer your question, I don’t think that a judge should ever been allowed to strike down something that is demonstrably Constitutional, no matter how insane or hurtful the law is. That said, there are no situations in which this applies. Even your brilliant state Constitution example is taken care of by the Supremacy Clause of the U.S. Constitution, which prohibits state law from contradicting Federal law. A judge can find that a state law (or even a Constitution) is worth striking down because it contradicts pre-existing Federal laws.

 
At 12:20 PM, Blogger RedHurt said...

j. morgan, I agree. I do not know of any instances in which this legislation from the bench has occurred, except perhaps emminent domain, which I've already addressed and am very upset by.

 
At 2:24 PM, Anonymous Anonymous said...

Interestingly, while j. morgan continually asks for an example of legislating from the bench, nobody seems to be bringing up Roe v. Wade as an example. Perhaps because Roe is such a polemical example, you guys have been avoiding it, but it clearly demonstrates the term "legislating from the bench." Previously, it had been up to state legislatures whether or not abortion was legal. Of course the majority opinion cited constitutional principles, but they were NEW principles. Nobody had ever read universal abortion rights into the constitution, and their reasoning was extremely dubious. You can disagree with me on that, but most legal scholars (even pro-abortion ones) see it as a progressive interpretation of the constitution, not a strict one. Thus, making it the law of the land through a SC decision was clearly legislating. It wasn't just "un-legislating," because it created a universal standard for all states. Many are worried that the same could happen with marriage laws. Proverbial "laws" coming from the Supreme Court happen all the time. How about Miranda rights? There's no law about them... they exist because of a SC decision saying that if they weren't read then the defendant was unaware of their rights and couldn't be held accountable for the things they told the police. I could think of more examples, but I'm late for class.

 

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