Asymmetrical Information

Odd that these same purveyors of "rights" implied by the Constitution and Bill of Rights seem to have a huge blind spot between the the 1st and 3rd Amendments. Guess there are rights and "rights we actually like"

Wonderfully thought out and written, I can't remember when I have read a better blog post.

Your point about judicial activism being a bipartisan vice reminds me of a brownbag talk I saw by Cass Sunstein where he looks at ideological voting within 3-judge federal courts of appeals. His main interest was to see whether the political party of the appointing president had predictive power for the (supposedly independent) judge's later votes. He also looked for group influences - for example, how does a judge vote if he's a Republican appointee on a court with other Repub appointees, versus being the lone Repub on a court with two Dem appointees. Sure enough, he finds a big effect for appointee party, especially for decisions involving discrimination, abortion, and the death penalty. What scares me about this is much of what you discuss... instead of having a system with neutral experts interpreting the written law, we end up with law being set based on whichever party manages to stack the courts in their favor.

BTW, the Sunstein work has since been published in the Virginia Law Review.

I just happened to be reading Kindly Inquisitors yesterday, and one of the points Ruach makes in the book is that there is no constitutional mandate that scientific inquiry be protected. And it probably shouldn't either. But this is still a worthwhile goal. Constitutional rights aren't and never should be the only things we care about morally and ethically.

This tendency to equate the two separate sets of rights (constitutional and "important to me") is one example of how people equate what they find rational, obvious, important or repulsive to what the community at large does. This is one of the threats Rauch fears will hurt the spirit of scientific inquiry, and ultimately, all of us.

At any rate, this comment is tangential to the post. Nonetheless, I hope that some are inspired by it to read Jonathan Rauch's excellent Kindly Inquisitors.

I've always been nervous about the term "Constitutional right." I worry that frequent use of the term gives people the impression that rights come from the Constitution or, worse, that if it isn't listed in the Constitution it isn't a right.

I sure do like the 9th amendment.

By the way, just what does "right" mean? The best definition I've come up with so far (and I'm biased because I made it up) is that rights are the values by which a society defines itself. By declaring certain values to be rights, we commit ourselves to defending those values, and thereby define our purpose as a society.

As far as "strong political responses" go, you haven't mentioned one of the most famous of all time: Andrew Jackson's famous "Mr. Marshall has made his decision. Now let him enforce it." comment, where he just completely ignored the SCOTUS ruling on Indian policy.

I agree with everything Jane said and would only add the following: One of the problems of judicial activism is not simply that the wrong people are making the decisions (the judge vs. the legislature) it's that judicial activism requires an INCREASING encroachment of the judiciary into what should be the legislative area. One of the best (worst?) examples of this was the school segregation case out of Kansas City (IIRC). There, after decades of busing, the schools were still largely segregated -- the whites had fled to the suburbs. The judge decided the "constitutionally mandated" way to deal with this problem was to build a super school that would be so great it would attract the white kids from the suburbs. The judge determined everything about the new school from its architecture to its curriculum. When the people refused to authorize the taxes to pay for the school, he mandated them anyway. From the one question of whether or not the schools should be integrated flowed countless decisions that should have been reserved for the people (or their elected representatives) but were instead made by the judge.

Some of Bush's nominations have made me at least a bit nervous as they appear to still be radical judiciaries, only conservatives rather than liberals.

As a conservative, I feel the Republicans should resist the urge to "stoop to their level," so to speak. In the end, radical judiciaries, like other things, e.g., gerrymandering, is bad for everyone.

Ironic the branch that originally lacked power in our 3 legged system of checks & balances, now seems to have the upper hand. I think the time has come to put the Judiciary Branch back in check.

Jane:

This sounds like a fairly standard conservative argument about "judicial activism," and I suspect there's a standard liberal response which I don't know or have forgotten (maybe someone will point it out). But (quasi-) briefly, the following things strike me as worth noting:

1. If "judicial activism" is "starting from the desired result, and then reasoning backwards to the decision," then a lot of people (incl., I think, Posner) believe Bush v. Gore falls into that group. A lot of people think that, within certain constraints, "reasoning backwards" is all judges ever do. (IIRC, HLA Hart made a pretty compelling case that all judges engage in "interstitial legislating.")

2. I think you have to address the "intent" problems of (a) why we have to follow the intents of long-dead men who were wrong on, e.g., slavery, (b) divining the intentions of said men, and (c) choosing which set of men to look to (the ones in 1789 or after the Civil War, when the Constitution was "re-ified").

3. Your claim that the Constitution sets up an operating manual for a "classically liberal society" should probably address the Democracy and Distrust construction that follows the same line and argues that activism is allowed only in protecting those group that cannot protect themselves through the ballot box - identifiable minorities. (And, IIRC, particular import is placed on making sure that such minorities can vote).

4. I think you are just plainly wrong on the history of public opinion on Brown. But assuming you are right (that most people wanted desegregation), it's not clear that it was a particularly important concern for them. There has been a long history of allowing the South to do some fairly vile things in order to get their support for other things. So judges, in this view, might just be pushing things for which there is widespread support up the queue and displacing other, more popular, things. There is a little courage there.

5. "And it still it took the Voting Rights Act, rather than a judicial decision, to end the disenfranchisement." All else aside, it took the enforcement (by judges) of the Voting Rights Act to address the disenfranchisement.

6. "Our political parties are increasingly warring for control of a despotic institution with which to make their ideas into law without having to get a legislative majority." I think Cass Sunstein looked at the numbers, and made the argument that, based on the number of appointee opportunities available per presidential term, it was roughly democratic. (I don't like the argument, but it is also parallel to your argument that judges are "democratic" in that they follow the will of the people). Also (in the "Cripes, other than elections, is there anything we don't do better than the Republicans" category) I'd note that an awful lot of our favorite judges are Republican appointees.

7. "This reduces "constitutional right" to a fancy locution for "rights I think are important." I think that an awful lot of what people mean by a "good lawyer" is someone who can make this move - argue that the words on a page include the meaning he wants. This falls into the "it's not a bug, it’s a feature" category.

Sorry for the length. As you might guess, I don't particularly buy your argument.

'This reduces "constitutional right" to a fancy locution for "rights I think are important".'

What makes you think the founders are exempt from this?

Mr. Walser, I remember when the judge in the K.C. school district case decided he had the power to tax, and thought that if this action can't get a judge impeached, nothing can. That the citizens of this country have stood by while dime-store Mussolinis have lorded over them is really quite depressing.

Of course, our other branches of government have accomodated this process as well. Legislatures do it by knowingly writing execrable legislation which invites judicial meddling, and executives do so to pursue policies that they can't get legislatures to pass, or to override legislatures, or, in the case of the President of the United States, simply attempting to consolidate power for national government, at the expense of the states.

Jason, the difference is that the rights that the founders thought important are by definition in the Constitution, since they wrote it. They also included an Amendment process to change the document. It would be preferable if partisans of all stripes availed themselves of that process, as opposed to seeking victory through courts. I suspect that they do not because they lack confidence in their ability to obtain a sufficient popular majority. As much as I oppose the Federal Marriage Amendment, as currently proposed, I'll give the supporters credit for forthrightly pursuing their agenda via the Amendment process. I wish others had done the same.

I'llCallYouTim,

2a - They weren't wrong, they were divided on the issue of slavery - hence the compromise.
2b - I'm not in to divination, but I'd say we look to what has worked. The idea is what is written in to the Constitution itself and what that meant when it was written.

L.V.

Earl Warren is every bit as dead as James Madison. Does that mean we get to ignore him, too?

Roe was not judicial activism. It was based upon existing precedent. Arguably, Griswold, which gave us the famous "penumbra" of rights was activism, but Roe itself was not, properly speaking, judicial activism.

Roe was judicial activism in the sense that there is absolutely no support in the Constitution for the holding. I thought that my Con Law professor was arguing that Roe was bad law (I thought the Roe result had a major quieting effect on the controversy as it existed pre-Roe) when he made it clear that he wasn't arguing the good/bad of it, but rather that there was no support in the Constitution for it. So I looked at it with new eyes, and I agree with him. It's made-up law, crafted by the judicial branch when the topic should have been left up to the legislative process. That's judicial activism.

(And while Griswold was not inconsistent with Roe, it didn't provide any substantial support for it.)

I can't let this slur on the South go by. I was raised in the North, but spent my first 20 years of adulthood in the South (South Carolina, North Carolina, and Virginia) before returning to the North again. I saw far fewer instances of discrimination in the South than I saw in Metropolitan New York. The South came to grips with discrimination and by and large simply ended it, while the North continues to say, who, us, we don't discriminate because we never had slavery, so we don't need to look at our actions. Look at Roosevelt, Long Island and its school system if you want to see an example of Northern segregation.

We never knew any other middle class people in the South who sent their kids to private schools. The vast majority of middle class people sent their kids to public schools, but there certainly were some (the small minority) who sent their kids to private schools.

So, in my opinion, the South is much further ahead than the North in ending discrimination and segregation.

So, in my opinion, the South is much further ahead than the North in ending discrimination and segregation.

So is that why Alabama's voters won't pass an amendment to outlaw slavery? The south only came to grips with desegregation after being forced to do so. In terms of race relations, southeners are light years behind just about any other portion of the country.

Herman -- I'm not too familiar with Alabama, but I have read that its constitution is a complete mess, and a lot of people protest by voting down all amendments whether they agree with the substance or not. They want the constitution to be re-written entirely, not "fixed" piece-meal.

In addition, I imagine it helps that the people of Alabama know slavery is illegal, and any provision of the state constitution to the contrary is meaningless.

Speaking as a lawyer, I think Megan/Jane has a nice handle on the issues. (Oddly enough, my daughter's name is Megan, and my wife's name is Jane; no wonder I like you.) I would like to hope there are a lot of us out there who (1) do not think the state should be criminalizing things like sodomy, but (2) think Lawrence v. Texas was opening a huge can of worms, partially pried open by Griswold and Roe. It is because of Roe v. Wade that we simply cannot have a rational discussion of abortion in this country. On the one hand, we have those who must stridently maintain that a minus-one-day-old child has ZERO human rights and may be terminated at will, which is patently ridiculous. On the other hand, we have those espousing the pure religious point of view which says 100% of human rights attach when the sperm fertilizes the egg, which is also ridiculous. (Disclosure: I'm a Catholic, so believe that as a matter of faith -- but that does *not* mean I think it's a practical way to set up legal rights.) It seems to me that any rational person should realize that there needs to be a balancing between the rights of the unborn and the rights of the mother, which gradually changes as the unborn child matures; but in the current state of affairs, it's all or nothing. Either we have no restrictions even on partial birth abortions, or women will be on Death Row for having a D & C the day after being raped. And that is thanks to Roe v. Wade.

Mike, Roe IS the middle ground in abortion. It recognizes both the right to have an aboriton on the part of the woman and the right of the state to protect the fetus as it moves closer to viability. The reason we can't have a reasoned dialogue is due to extremists on both sides, not Roe.

No, Roe is *not* the middle ground in abortion. Abortions may be had up to and including when the child has partially emerged from the womb, provided the physician certifies it is for "the health" (including mental health) of the mother. If that were not the case, why exactly has the partial birth abortion ban *already* been struck down as violating Roe v. Wade? Further, the trimester approach is just plain silly, having no biological or rational basis. Perhaps if you could elucidate any situation where that "right of the state to protect the fetus" has been upheld at all, in any circumstance, your argument might have some merit. As it stands, Roe and its progeny have utterly eradicated any rights of the child prior to the cutting of the umbilical cord.

How can I resist throwing a few cents into this pot?

"Judicial activism" is such an unfortunate turn of phrase. As though the desired state would be judicial passivity? We want judges to be active, we just want them to act as judges.

That said, I guess Jane's definition of the invidious label is as decent a one as I've seen. Ideally, we want judges to apply established principles to facts and reach conclusions, not apply personal preferences to reach conclusions, and then invent principles to justify them. That's what we mean when we say we have a rule of laws and not of men. But everyone who works in the law knows that it's way more complicated than that. Rarely is it just a matter of "rules + facts = result," else we'd have computers and not people doing it. Reasonable people can differ over the proper application of principles, and imagining the results of a particular application (in this and future cases) is clearly a valid--indeed, crucial--aspect of legal reasoning. All good judges can point to decisions they've rendered where they followed established rules to reach results they didn't like. All honest judges can point to decisions they've rendered where one could plausibly have looked at it either way, and they finessed it to reach the result they thought was "right." Whether there is anything illegitimate about this in any given case is always going to be a difficult question, depending on what we mean by "finesse" and what the judge's views as to the "right" were based on. You will never eliminate this gray area entirely. Nor, arguably, would you want to. [By the way, if you want to read the classic illustration of the judicial dilemma, read this piece by Lon Fuller. Trust me, it's one of the few law review articles that deserves a place in world literature.]

Jane makes no secret of her admiration for Justice Scalia, and I think that one can usefully describe his jurisprudential philosophy as based largely on his conception of the proper role of a judge in a democracy. (Leave aside for now whatever inconsistencies we might accuse him of having committed in practice; I'm not interested in debating his sins but in analyzing the approach he espouses.) Scalia does want to eliminate that gray area as far as he can. He sees bright line rules as a safety net that he can rely on as a judge, so that when he has to make hard, counter-majoritarian rulings, he can point to them and say, "I'm just applying the rules." This is what underlies his preference for textualism and originalism. It also underlies his views of stare decisis, which counsel him to accept--apart from egregious cases--precedents that his first principles would otherwise regard as erroneous. That's why Scalia, in cases where there is an enumerated right listed in the Constitution, enforces it come hell or high water, leading him sometimes to results far more intransigently rights-oriented than those of more "moderate" voices who always want to split the baby. Look at his confrontation clause cases ("No, the victim of child molestation doesn't get to testify on videotape because she'll be intimidated. The defendant has a right to look her in the eye."). Look at Blakely ("No, you can't enhance someone's sentence based on a fact that the jury was never asked to find.") Look at his Hamdi dissent ("No Mr. Ashcroft, you have three choices when you detain someone. Charge him, ask Congress to suspend the writ of habeas corpus, or let him go. That's it.") On the other hand, when he is asked to overturn a majoritarian enactment on the basis of a right that has no textual support in the Constutitution, he says forget it.

The problem is that Scalia's basic views about the role of a judge actually put him at odds with the text and original meaning of the Constitution. If the text of the Ninth Amendment means anything, it means that when there is an assertion of rights at issue, a judge is forbidden to say, "Well, I don't see it listed here, so it must not be a right." To say that is necessarily to construe the enumeration of some rights as denying or disparaging others not listed. Scalia's response to this is essentially the same as his fellow traveller Bork's: to treat the Ninth Amendment as an "inkblot." Since the burden of identifying non-enumerated rights is incompatible with his understanding of his proper role as a judge, he can't deal with the Ninth Amendment at face value. He has no tools--none that he recognizes as resting legitimately in the hands of judges--with which to figure out what rights are being referred to. So he puts the burden on the proponent of the right to prove historically that it must have been something they would have had in mind.

As I think Randy Barnett's work convincingly shows, the whole point of the 9th Am is that rights are innumerable. It's only government powers that are limited and numbered. We don't list your inviolable rights, because liberty means the inviolable right to do anything that doesn't violate someone else's rights, in which case one of the government's listed powers ought to cover it. The burden of proof should always be on the government in exercising its power, not the citizen in acting. Thus Barnett would relieve Scalia of the burden of deciding which rights are "fundamental," by saying, "They all are. You know the kind of scrutiny of government action you apply when free speech or religious practice is involved? Just use it all the time." The presumption is of liberty, the burden of proving entitlement is on the government. Make the government file the Brandeis brief. Make it prove that it has a legitimate end and is using narrowly tailored means to achieve it. If so, fine.

Strangely enough, Scalia and company are not rushing to embrace this solution to the dilemma. Neither are the liberals who are supposed to be all hot and bothered about liberty. In the latter case, it's because they really don't want all restrictions on liberty to be subjected to strict scrutiny. They love Roe, but hate Lochner. In the former, it's because they think this would turn them into a "super-legislature" which would, again, be incompatible with their concept of their role as judges. I too was trained to think so. We all were in law school. But it occurs to me that "super-legislature" is the wrong term. How about "co-equal branch of government with an equal responsibility to abide by the Constitution and judge whether exercises of federal power are necessary and proper." Strictly speaking, the Court does not "overturn" laws. It simply declines to enforce them. As should the executive, if he believes them to be unconstitutional. For the federal government to do anything that impinges on the rights of citizens, all three branches have to agree that it is necessary and proper. What do you say, Jane? I know you're much more of a gut libertarian than ol'Nino. You willing to bite?

Oliver Wendell Holmes would, in conference, often turn to his fellow Justices and offer to write an opinion on either side of the case before the court using any legal principal they wished.

It's unclear if his fellow Brethren ever took him up on the offer, but that brings up a point that's repeatedly hammered home in first-year law school: judges usually decide what side of a case they want to come down on, and then find a way to make the law work.

Does this make their decisions any less important or valid? No. The law is a powerful and flexible tool; that's what it's there for. In fact, it is arguable that the entire basis of the power of the judicial branch is based on a breathtakingly bold piece of judicial activism in Marbury v. Madison.

On the other hand, this also brings us the maxim that "hard cases make bad law".

It should be also noted that there is a branch of the law--courts of equity--that are not bound by common law; the objective in equity is not to interpret law but rather to do justice by the conscience of the chancellor. I'm sure that there are experts in chancery law who'll be happy to tell me that I'm wrong on the particulars, but the broader point stands.

There's a big problem in determining whether a particular judgement makes Constitutional sense or not: the text of the 9th Amendment.

It explicitly denies the very possibility that we can say that something definitely isn't a right of the people that the government is bound not to infringe. It tells us that there are rights that aren't explicitly mentioned in the Constitution, but doesn't offer any real clues as to what those rights are.

So what you get is simply an arbitray veto on Federal laws in the hands of the Supreme Court. Once we started applying the Bill of Rights to the states, we added an arbitrary veto on state laws in the hands of the Supreme Court.

Is this a bad thing? The Supreme Court can cause a lot of harm by interpreting laws more expansively than even Congress intended; however, I'm not sure that anyone having the right to remove laws at will is such a bad thing.

My comments became rather long.

Especially when I had to address Ken's last point. (To be fair, it was made by other's as well...)

In fact, CMN's comments deserved a post of their own.

"If that were not the case, why exactly has the partial birth abortion ban *already* been struck down as violating Roe v. Wade?"

For a couple of reasons. Because most of the bans were content with being a pure "partial birth abortion" ban. They had to leave themselves some wiggle room to possibly be interpeted as a complete ban on abortion. Read them. Then there were others that didn't allow for the mother's health exemption that is a definite part of Roe. Roe doesn't say that the mother's mental health is definitely part of the health clause and the writers of the bans have never attempted to craft something that would allow for the mother's physical health.

5. "And it still it took the Voting Rights Act, rather than a judicial decision, to end the disenfranchisement." All else aside, it took the enforcement (by judges) of the Voting Rights Act to address the disenfranchisement.

But a law gives (a) the sense of the collective will, and (b) a firm piece of text to which one may reference back (even if the precise meaning of the text changes in later legal decisions). The fact that court decisions are required in order to maintain that decision practically doesn't change either of those points. Conversely, an 'activist' judicial decision gives the effect of a law, but has none of the first virtue and only a less accessible (and possibly dangerously broad) version of the second.

I disagree that courts enforced the voting rights act. They ruled as to its particulars, but it was enforced by police and other executive branch officials.

Ken,

I think the Constitution and the 9th amendment are very clear as to what the unenumerated, inviolable rights are -- in essence, the federal government can do *only* what is set out in the Constitution and nothing else.

A number of the Founding Fathers were opposed to a Bill of Rights because they feared that an enumeration of certain rights would eventually be interpreted as the only rights the people had. I believe those fears have been proven correct.

So with that said, I think the worst abuse inflicted on the American people by the three branches of government has been the interpretation of the commerce clause. The courts have basically taken this clause to mean that the federal government can interfere in anything it wants to that isn't explicitly protected by the Bill of Rights.

Back to the South again. Herman said, "The south only came to grips with desegregation after being forced to do so." My point is that while the south came to grips with desegregation, the north never has. Thus, there is more actual segregation in the north.

I understand the distinction you want to make, Megan. Courts don't confiscate your property or point guns at your head and escort you to small barred rooms. Cops and marshalls do that. But we still commonly talk about courts "enforcing" laws. And this is proper, because by authorizing the executive to take literally forcible actions against particular individuals based on a law, a court participates in "giving force" to that law. It's not just a question of "ruling on the particulars" of the law, but of ruling on the rights and obligations of specific individuals under that law.

(In fact, just what it means for a court to "enforce" a law is part of what's at issue in a pending case I was just working on, Pasquantino, in which part of the issue is whether U.S. courts "enforce" foreign revenue laws when they adjudicate charges of "wire fraud" that consist of nothing but evading those foreign revenue laws.)

Perhaps this is one of those cases where proper usage ought to depend on context. If we're discussing some sort of conflict betweeen the Judiciary and the Executive (as in Andrew Jackson's famous "let him enforce it" line), then it makes sense to distinguish between what courts do and what people with guns do. In a broader sense however, assuming that executive officials will not take certain actions in the absence of a judgment, what happens in a courtroom is a necessary part of the process of "enforcing" a law.

[Too late!!!--ed]

[And still it took the Voting Rights Act, rather than a judicial decision, to end the disenfranchisement--ed. Good point!]

Um... that fictional editor is Drezner's schtick, and I'm not terribly fond of it when he uses it, which is far too often.

Great post, otherwise.

I actually started out as Mickey Kaus' schtick, but now I seem to be practically everybody's schtick.

This is undoubtedly true. But that doesn't mean that judicial activism doesn't exist; it just means that it's a bipartisan vice. Even if the normal political usage of the term isn't strictly objective, one can still define what judicial activism is--broadly, starting from the desired result, and then reasoning backwards to the decision, as the court did in Roe v. Wade, and a lot of other cases.

I'm not so sure this really captures what happened. Roe was influenced by Griswald, which held the state could not ban married couples from using birth control That case, in essence, argued that there was an implied right to privacy in the Constitution. While the reasoning is debatable I don't think this idea is so far off base. Do we really think the Constitution gives the gov't broad power over our bodies? Can the gov't, for example, ban masturbation? Can the gov't require women to get pregnant and give birth as part of a eugenics program?

Once you accept this premise, a lot of other questions are opened up. How far does this zone of privacy extend? What about unmarried couples using birth control? What about abortion? Gay sex? and so on...

But that's not right. The founding fathers certainly never intended, for example, to scrub religion entirely out of the public square, and yet there are both libertarians and liberals who fervently believe that it is so. The founding fathers intended only that there should be no federal "established church. Their "constitutional right" is the product of judges who believed that religion should be scrubbed from the public square, not some primal tenet of American life. How did we manage to sacralise this tenet in under a decade?

Not quite Jane. The original Constitution did indeed ban just Federally established Churches. The post Civil War amendments were interpreted as 'incorporating' most of the Bill of Rights to the states. So post-antebellum law says states cannot establish religion anymore than the Fed. gov't can. This becomes an issue, though, because state gov'ts are 'in our face' more than the Federal gov't is. It is the state gov't that owns and runs many of the local schools, parks, public buildings and such.

Well, no, it didn't, really. The court could order desegregation, but it didn't really get any where until the Federal government muscled in . . . and that took the general will, not the will of the court. Brown was also popular outside of the south, although of course not in it; it wasn't a case of judges going against the majority.

But the Fed gov't could step in because they could legitimately claim to simply be enforcing the law. I understand you're not a lawyer Jane but neither am I. Are you seriously that ignorant of what the actual Constitution says that you don't think Brown.v.Board of Ed was a close reading of the actual Constitution rather than 'judicial activisim'?

Hint, the post Civil-War Amendments were specifically enacted with the idea of forcing the South (and the rest of the country) to reject slavery and accept 'equal protection'. Segregation's only argument was that it didn't violate the Constitution because the segregated institutions were 'equal'. The counter argument was not a novel invention of a new right but that segregated institutions were inheritly unequal and hence could not be Constitutional.

I think halfway through your post you forgot your own definition of judicial activism (starting with your desired conclusion and reasoning backwards) and invented another one (a decision that is highly contraversial).

but (2) think Lawrence v. Texas was opening a huge can of worms, partially pried open by Griswold and Roe.

Yet the opposite also applies. A huge can of worms would have been opened up by rejecting Griswold.

I find a useful test is to reverse the action and see how your idea applies. For example, laws requiring parential permission to get an abortion are often defended by pro-lifers in terms like 'parents should be able to stop their 16 yr old from having an abortion'. OK, but how about the opposite? Can parents therefore force their 16 yr old to have an abortion if they feel her life would be 'ruined' by carrying the kid to birth?
Likewise if the state can tell a woman she can't have an abortion can it tell a woman she must have an abortion? If not, why not? These questions are not as absurd as you would have them. There are probably as many parents who would want their daughter to 'get rid' of an unwed, underage pregnancy as who would not want their kids to have an abortion. China does currently have laws requiring abortion as part of their population planning. When NJ changed welfare so as not to pay women more for having additional kids, the Catholic Church opposed this because they felt it would lead to more abortions. Is it impossible to believe someone may decide to mandate abortion for women as a condition for welfare or require it for 'unfit' mothers?

There was a fundamental idea the Founders had, it was that gov't was created to serve individuals...individuals were not created to serve the gov't. The Constitution they wrote established a Fed. gov't that respected both individuals and states, the post-Civil War amendments required states to do the same. While I respect the argument that Griswald and Roes' connection to the Constitution is very weak I think critics have a duty to explain if they really believe the Constitution established the overbearing gov't I described above.

"And it still it took the Voting Rights Act, rather than a judicial decision, to end the disenfranchisement." All else aside, it took the enforcement (by judges) of the Voting Rights Act to address the disenfranchisement."

Jane disagreed with the enforcement part of this comment, but I want to disagree with the point of the comment. Administering properly passed laws is what judges are supposed to do. So 'enforcing' the Voting Rights Act doesn't bolster a case for activist judges.

Judicial activism is, in one version of the definition, defined as striking down laws passed by a legislature (or striking down acts of the executive). The problem with this definition for conservatives and Jane is that it is not ideological.

Jane's definition looks well thought out and well reasoned but it is basically doing what she accuses liberal 'activist judges' of doing, assuming the conclusion she wants. She thinks Lawrence was not the correct decision therefore it is 'judicial activism'. She probably doesn't realize it but she isn't that far from leftists and Stalinists who assumed anyone who disagreed with them must be suffering from some type of mental illness.

Her game is given away in her analysis of Brown.vs.Board of Ed. Here was a decision that is almost impossible to attack on the grounds of judicial activism. The Equal Protection Clause was written with the intent of prohibiting the states from treating people unequally, especially blacks and former slaves. Here's a law that was impossible to enforce without treating people unequally based on race.

She falls back on the observation that 'real change' happened when the legislative and executive branches got into the act and enforced the judicial rulings and added their own (i.e. the Civil Rights Act, Voting Rights Act and so on). This observation is quite trivial.

Of course a change will be more effective if all three branches of gov't are behind it! Of course a change introduced by the judicial branch in opposition to the desires of the people (whether or not the change is the result of an 'honest' reading of the Constitution) will be less effective!

By design the judicial branch is a check on the other two and by definition when it acts it will often be in defiance of the 'majority will'. Why would an unconstitutional law have been passed in the first place if there wasn't something like a majority will out there supporting it?

This is why the 'mythic judge' is quite useful. In order to be respected, judicial decisions must be perceived as coming from a different plane than the supposedly baser political motivations of the legislative and executive branches.

This 'mythical plane' is one where scholarly introspection is seen as the prime motivator of decisions. Reality, though, is often shaped by mythology. By crafting decisions in this image, judges must meet appearences by arguing not with personal desires but doctrines, precedents, and so on. In time, the myth shapes the reality because a Conservative judge will strike down a Federal Law if it contradicts the doctrines he uses...even if that law was passed with general support of the right. If he doesn't, he will be attacked for being 'political' or 'hypocritical'. I'm not saying it always works like that, but it does more often than one would think.

Boonton, go back and reread what I wrote. I support the outcome that Lawrence produced -- the elimination of sodomy laws. But I think it may have produced said outcome in an illegitimate way, and I think that it's better to produce the occasional bad outcome with a good process than the other way 'round. This is exactly the opposite of what I'm accusing judicial activists of, which is privileging the outcome over the process.

Jane, I understand that you recognize the distinction between a law that is bad because it violates the Constitution versus a law that is bad because it is bad policy (but fine Constitutionally). My argument is not that you support bad laws like segregation or regulating private sex lives, my argument is that your definition of judicial activism is basically self-serving. It's basically 'anything I disagree with is judicial activisim' dressed up in some fine sounding language.

Of course it would be better if voters and legislatures always supported the 'right' laws. That's like saying it would be better if everyone just obeyed the laws rather than needing to hire police to enforce them. The judicial system must act as a check on the legislative by definition. If a law is found unconstitutional the ruling is going to offend 'the majority' on some level. If it didn't then the law wouldn't have been on the books to begin with!

Boonton, you're confusing "I disagree with anything that's judicial activism" with "anything I disagree with is judicial activism". By definition, anything I cite as judicial activism I will disapprove of, because I disapprove of judicial activism. You've got the causation running the wrong way.

You've also got a rather naive view of how laws get made. Laws have to avoid egregiously offending the majority, but they do not need to command a majority's support except on the largest issues.

I understand that a law can get passed without literal majority support (that's why I used quote marks around 'the majority'). My point is that when a law is struck down, it will probably be done over the objections of either a majority or an impassioned minority. If not, the law would have never been passed to begin with.

The judicial branch, in other words, is supposed to function as a circuit breaker in the democratic process.

By definition, anything I cite as judicial activism I will disapprove of, because I disapprove of judicial activism. You've got the causation running the wrong way.

You've cited examples of cases where you liked the 'policy' result (ending segreation, ending regulation of sex) but simply assumed were the result of judicial activism. As far as segregation goes you've provided no real argument other than the observation that action on the legislative/executive branches was more effective in fighting racism (I agree with you but that's irrelevant to this topic). The Lawrence/Roe criticism ignores the fact that they were both built on Griswald. Rejecting that deicision opens up a whole other next of issues, a few of which I touched on. Are you really willing to commit yourself to the view that the Constitution provides for state gov't's nearly unlimited ability to regulate the personal lives and bodies of individuals?

[--ed]: I actually started out as Mickey Kaus' schtick, but now I seem to be practically everybody's schtick.

Forgot about that.

But if Jane/Megan is far too good of a writer to need schecond-hand schtick, she's definitely beyond needing third-hand schtick.

Jane/Megan,

This is your finest piece of writing in a while. Bravo!

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