Comments on: Justice Sotomayor (Day 1): Activism Cuts Both Ways

By: ACG

ACG — Tue, 14 Jul 2009 17:50:16 +0000

“Their role is not to overturn laws unless those laws are deemed unconsititutional (sic) by the Supreme Court. Their job is to uphold the laws established by the legislature.”

It’s a strange patriot that disclaims America’s greatest contribution to democratic/separation of powers theory – judicial review – which was dreamed up and clearly supported by the Founders themselves.

By: Igor

Igor — Tue, 14 Jul 2009 17:47:30 +0000

“Their role is not to overturn laws unless those laws are deemed unconsititutional (sic) by the Supreme Court. Their job is to uphold the laws established by the legislature.”

I am not sure what you mean and your statement seems a bit contradictory. Are you referring to a judge having to follow higher court precedent (which they almost always do)? Of course, there are instances where no higher authority has addressed a particular issue. Moreover, defining judicial role as that having to uphold legislative acts completely undermines Judiciary’s role in checking and balancing the other two branches.

“Their role is not to overturn laws unless those laws are deemed unconsititutional (sic) by the Supreme Court.” Seems to be a tautology unless you are referring to the power of precedent.

By: Jay

Jay — Tue, 14 Jul 2009 16:38:10 +0000

Pure PAP. Nothing to do with what I or anyone else likes or doesn’t like. Another unfounded assertion. It has to do with whether its constitutional or not or is the judge using some other basis for their decision. Any judge who uses some other basis for their decision outside of the law is an activist. In other words, they are going outside of their oath as a judge and their purpose as a judge. Their role is not to overturn laws unless those laws are deemed unconsititutional by the Supreme Court. Their job is to uphold the laws established by the legislature.
It seems to me that it is you who doesn’t like the definition of what a judge is supposed to do and what their role is.

By: ACG

ACG — Tue, 14 Jul 2009 16:19:25 +0000

Rightio Igor. And Jay – read

http://acandidworld.net/tag/judicial-activism/

By: Igor

Igor — Tue, 14 Jul 2009 16:17:56 +0000

““Accepted Theory”. Accepted by whom?” – accepted by legal scholars and previous judges in interpreting a particular law and the constitution. Some examples include literal interpretations, legislative or founding intent, cannons of construction, etc. That may vary depending on personal philosophy (read oriiginalist), but surely deviation from that does not make one an activist judge?

You state, “activist from the bench try to make new laws with their decisions rather than following the constitution and interpreting the law as it exists and how that applies to the facts of each case.” But if the judge follows different methods of statutory construction in interpreting the law how does it make one an activist judge?

It seems to me, and that is ACG’s main point, that the definition of an “activist judge” you and many others proposed ad nauseum is not a very useful one as it seems to include any judge who reaches a result you don’t like by overturning an existing law.

By: Jay

Jay — Tue, 14 Jul 2009 15:55:53 +0000

Not sure what your definition is of “Accepted Theory”. Accepted by whom?
Nevertheless, the point of this discussion from the beginning had to do with no facts to back up concern with Roberts. I am not going to debate activism versus constructionism with you. They have been well defined. I am simply pointing out that the original concern was not backed up. So it is empty.

By: Igor

Igor — Tue, 14 Jul 2009 15:42:11 +0000

“Laws are up to the legislative branch who represent the people of this country to make, not the judges.”

Are you saying that any judge who deems a law unconstitutional using an accepted theory of legal interpretation is an activist judge?

By: Jay

Jay — Tue, 14 Jul 2009 15:34:31 +0000

So your justification for the concern is that Republicans haven’t defined the meaning of judicial activism? Why not outline the concern specifically using examples rather than just make accusations. That would make this worth reading. Otherwise it comes across as whining and dart throwing without any basis in fact. The record of the Chief Justice raises the concern but leaving it at that proves nothing. No proof convinces no one.
As to your assertion that Republicans have yet to define judicial activism, I can only conclude that you don’t listen to Republicans or Conservatives at all. They have emphasized and defined this point at nausiem over the years. Simply put, activist from the bench try to make new laws with their decisions rather than following the constitution and interpreting the law as it exists and how that applies to the facts of each case. Laws are up to the legislative branch who represent the people of this country to make, not the judges.
Its not up to judges to say that the law should be different in deciding a case. They are there to simply apply it.

By: ACG

ACG — Tue, 14 Jul 2009 15:00:14 +0000

That’s a strange comment to make, Jay, because I have yet to hear a Republican ever speak intelligently about what “judicial activism” even means. Can THEY cite to any cases or concerns, or is it just “I don’t like the way Roe came out!!”? That, obviously, isn’t enough!

As for your questions, if you search this blog (feature on the left sidebar) for “Chief Justice Roberts” you’ll probably get about a billion hits, half of which would be on point :)

By: Jay

Jay — Tue, 14 Jul 2009 14:08:06 +0000

Thanks for the reply. Perhaps valid concerns given the record but they should be validated with the facts and examples that support the concern. I don’t see where anything was actually illustrated. Just conjecture.