Monday, May 4, 2009

Judicial Activism ('4 of 3')

If you are going to pursue truth, you have to be prepared to change your mind!

Our Activist Judiciary = Checks and Balances (Part 4 - See Parts 1-3 below)

In a NYTimes analysis in 2005, Professor Paul Gewirtz and Yale Law graduate Chad Golder gave an interesting set of facts on “judicial activism.”

They define judicial activism in terms of overruling Congressional acts on grounds of unconstitutionality: “Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act ‘of great delicacy, and only to be performed where the repugnancy is clear.’”

So, who are the “activist” judges?

From 1994 to 2005, in cases challenging constitutionality, the each of the justices voted to rule a congressional act at this rate:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

So, the “conservative justices are generally the “activist judges.”

So much for conservative attacks on “judicial activism.”

Following, an historic look at judicial activism from the perspective of “judges making law.”

(Some call this “legislating from the bench”, but that’s a simply a misuse of language in an attempt to backdoor a constitutional argument: that Congress has the sole right to legislate and so courts shouldn’t. Judge made law is simply the creation of common law - which has been at the core of our legal system since long before the adoption of the Constitution -- dating back to pre-colonial England.)

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