NationStates Jolt Archive

This is to pick up a topic on a thread closed for flaming in earlier pages.

http://forums2.jolt.co.uk/showthread.php?p=7391896#post7391896

Point: The term "activist judges" is a sham, created to blacklist judges who don't vote as the Bush administration would like them to. No judge has done anything different than the traditional checks and balances have always allowed them to, so they have to create buzzwords to condemn their completely legal rulings. My challenge is for someone to cite a case of one of these judges "ruling from the bench" or "making laws." Ammanaru couldn't do it. Can you?

This is to pick up a topic on a thread closed for flaming in earlier pages.

http://forums2.jolt.co.uk/showthread.php?p=7391896#post7391896

Point: The term "activist judges" is a sham, created to blacklist judges who don't vote as the Bush administration would like them to. No judge has done anything different than the traditional checks and balances have always allowed them to, so they have to create buzzwords to condemn their completely legal rulings. My challenge is for someone to cite a case of one of these judges "ruling from the bench" or "making laws." Ammanaru couldn't do it. Can you?
Doesn't happen. Closest thing to this is Roe v. Wade, which pushed the 4th amendment right to privacy a bit far, but no actual law making.

The Empire of Presidency can do any thing it wants.

Doesn't happen. Closest thing to this is Roe v. Wade, which pushed the 4th amendment right to privacy a bit far, but no actual law making.

Indeed, and knowing that, I issue this challenge in the vague hope that maybe someone will stop using one of these little Neoconservative-constructed buzzwords. I want someone to put their money where their party's rhetoric is and show me an example of an activist judge legislating from the bench.

I expect, though, that this thread will just quietly sink into obscurity.

Doesn't happen. Closest thing to this is Roe v. Wade, which pushed the 4th amendment right to privacy a bit far, but no actual law making.

Actually, i think you've just proven one point... the right to privacy is an unwritten right. Nowhere does the 4th amendment use the word privacy. In a sense, some would say it was "created" by the court. The modern doctrine didn't even arrive until Griswold v. Connecticut in 1965, though the 4th amendment had been around for nearly 200 years. In fact, any of the so-called "unwritten" rights could be so classified. It is a form of interpretation, and therefore fits within the broad rubric "judicial review." But some of theses interpretted rights were never considered to be rights before the courts so decided. Is it judicial activism, or is it judicial review... and where is the line drawn? A case could be made either way.

Actually, i think you've just proven one point... the right to privacy is an unwritten right. Nowhere does the 4th amendment use the word privacy. In a sense, some would say it was "created" by the court. The modern doctrine didn't even arrive until Griswold v. Connecticut in 1965, though the 4th amendment had been around for nearly 200 years. In fact, any of the so-called "unwritten" rights could be so classified. It is a form of interpretation, and therefore fits within the broad rubric "judicial review." But some of theses interpretted rights were never considered to be rights before the courts so decided. Is it judicial activism, or is it judicial review... and where is the line drawn? A case could be made either way.
Zones of privacy are created by the rights to speech, search and seizure, etc.

You do realize that the practice of judicial review is, in and of itself, a symptom of activist judges? That judicial review was not in the Constitution, and that it only came about because Matshall set precedent in Marbury vs. Madison? You see, "activist judges" doesn't solely refer to liberal judges. As a law student, I would hesitate to consider any judge nowadays to be anything other than an activist judge. The simple right to determine something unconstitutional is an example of "activism".

Therefore, it wasn't that you were right before, it was merely that you didn't have a very knowledgeable opponent. As hereinabove stated, the idea of an "activist judge" is unilaterally applied, and you are the only one to have twisted the term to serve your purposes. However, I would point out that the 9th Circuit has taken some rather unconventional and quite possibly illegal (according to the Supreme Court's ruling in the Newdow case) steps, such as allowing a father to sue on behalf of a daughter that he had lost guardianship status of. That would be a case of present day activism. As to legislating from the bench, every court ruling constitutes an "unwritten law", because it undeniably affects the responsibilites and requirements of the executive branch (i.e. police officers), which do little more than enforce legislation (i.e. laws).

Zones of privacy are created by the rights to speech, search and seizure, etc.

Yes, that's what i alluded... but who said that was the intent of the Constitution writers? If they so intended, why not include the word privacy in the document? I'm not saying it's wrong to so interpret it... but is it really judicial review to create something that was never intended? That's where the whole judicial activism claim comes from.

Zones of privacy are created by the rights to speech, search and seizure, etc.
Absolutely true. Granted, we have far more freedom nowadays. Some of the steps are good, in that they protect the rights of the individual. However, in some cases it merely inhibits the ability of law enforcement officials to properly administer their responsibilities. I would say we are starting to lose our balance, but that it merely a personal opinion.

Actually, i think you've just proven one point... the right to privacy is an unwritten right. Nowhere does the 4th amendment use the word privacy. In a sense, some would say it was "created" by the court. The modern doctrine didn't even arrive until Griswold v. Connecticut in 1965, though the 4th amendment had been around for nearly 200 years. In fact, any of the so-called "unwritten" rights could be so classified. It is a form of interpretation, and therefore fits within the broad rubric "judicial review." But some of theses interpretted rights were never considered to be rights before the courts so decided. Is it judicial activism, or is it judicial review... and where is the line drawn? A case could be made either way.

It's all the same thing...judges are not supposed to rule on public opinion. They are supposed to critically consider laws based on their Constitutionality. Judicial review of an unconstitutional law necessarily leads to an action being taken in passing judgement, and some people don't like the idea that there is an aspect of the government which they cannot manipulate with popular opinion (which they can easily influence with words like "judicial activism").

You do realize that the practice of judicial review is, in and of itself, a symptom of activist judges? That judicial review was not in the Constitution, and that it only came about because Matshall set precedent in Marbury vs. Madison? You see, "activist judges" doesn't solely refer to liberal judges. As a law student, I would hesitate to consider any judge nowadays to be anything other than an activist judge. The simple right to determine something unconstitutional is an example of "activism".

Therefore, it wasn't that you were right before, it was merely that you didn't have a very knowledgeable opponent. As hereinabove stated, the idea of an "activist judge" is unilaterally applied, and you are the only one to have twisted the term to serve your purposes. However, I would point out that the 9th Circuit has taken some rather unconventional and quite possibly illegal (according to the Supreme Court's ruling in the Newdow case) steps, such as allowing a father to sue on behalf of a daughter that he had lost guardianship status of. That would be a case of present day activism. As to legislating from the bench, every court ruling constitutes an "unwritten law", because it undeniably affects the responsibilites and requirements of the executive branch (i.e. police officers), which do little more than enforce legislation (i.e. laws).

1) That all still sounds like the checks and balances we were familiar with before Bush came into office. Judges rule, and while they may create "unwritten laws," that's nothing new.

2) It sounds like you're citing a long legal precedent for such a thing...exactly why is this a problem now? As I see it, this is our modern judicial system, and Bush's supporters only began complaining about it when judges began making decisions they didn't like. As such, I twist nothing. If you'd like to prove that, at one time, the Judiciary was weaker, by all means, go ahead. That doesn't change the fact that these are the usual workings of the Judiciary as we know it, and that the term is meaningless. If all judges engage in "judicial activism," then indeed, what's the definition of the term as it's used? I doubt anyone who uses it is hearkening back to a 200 year old precedent.