Why would you claim that, "the civil rights movement, ultimately resorted to 'judicial activism'?" Constitutional law, specifically the Fourteenth Amendment, was the basis for many of the civil rights rulings. Judicial activisim would seem to involve judicial decisions that were not supported by the law, not correcting the active and blatant overriding of Constitutional Law by various levels and localities of government.



Here is Section 1 of the Fourtheenth Amendment:



All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I would say that affirmative action laws stretch the Fourteenth, although I think they're often morally justified by unequal treatment before employment - which, when done by gov't, also stretches the Fourteenth.

Hard cases::bad law, etc.

Something that "activists" tend to forget is that the Supreme Court can only rule on the constitutionality of a law, not its sensibility. Was the Fugitive Slave Act a horror that has no place in a modern society? Yes. Was it constitutional? Also yes.

The "anti-activists" (inactivists?) tend to forget that what the courts are doing in many cases is simply pointing out the implications of the laws. "The law says to do this. You're not doing it. Fix it!"

For every Brown v. Board of Education, there is a Dred Scott. The Supreme Court can "advance" the progressive agenda in a Roe v. Wade, but then kill it in cases like Schechter (the New Deal killing cases).

While we can marvel at social advances by the likes of a Warren Court, judicial mediocrities (at best) such as the Rehnquist Court are more typical.

Best not to give these bodies what amounts to a legislative mandate in the first place, lest the likes of an Antonin Scalia or Clarence Thomas decide to use their unelected superlegislator for life position for evil or picking presidents, instead of niceness or just being judges.

So, sure, SOME civil rights benefits were fortuitously achieved through the courts. I would say, on balance, its best not to rely on the occasional superlative jurist, especially in a system such as we have now that DEMANDS non-controversial mediocrities, some of whom, as noted above, will seize their mandate with a vengeance. Legislative problems should be resolved, for better or worse, by the legislature and democratic process.

Seems like pretty near every fiat I ever rode in was like a bad drug, enticing but disappointing. Also seems like we need to be clear about judicial review v. judicial activism.

In the American Legal History class I just got done taking, we spent a lot of time on the protoScalian jurisprudence of what legal historians call the Lochner era. From the scrapping of Reconstruction to the New Deal, the 14th Amendment was hijacked by judges who used it to prevent legislative action that ran against the grain of their laissez-faire ideology. It was these dead-hand conservatives who were rightly lambasted for judicial activism by progressives and legal realists.

Their ideological heirs on the present Supreme Court are the most "activist" in US history, if you go by the number of laws they've overturned. I think this kind of judicial tight-reining is bad because it impairs our collective ability to respond to "the felt necessities of the time." (see OW Holmes)

But I don't think it's okay to say "judicial activism is bad" and leave it at that. Not only does that line serve the right wingers who've been pushing it since Nixon's Southern Strategy, in which he ran against the Warren Court's race, civil rights, and criminal procedure cases, it's fundamentally a mis-representation of what we want and need judges to do. Check out Jack Balkin's musings on good judging (scroll down to May 18) for a far better line on this than I can provide.

My own take is that in a complex, necessarily administrative state, an engaged judiciary is even more critical to making the often contradictory elements of law work together in an effective and accountable system. The late Judge Dwyer's epochal role in the fight over Pacific Northwest forest policy is for me a great example of good judging in both result and method, but W and his fellow absolutists call it judicial activism and are doing their damnedest to keep it from happening again.

The decision Chris Bertram finds objectionable seems to me like it might be the EU's answer to Marbury (in which judicial review was established for the US).

And talking dog: Pickering, Pryor, Thomas and Ashcroft might be mediocre, but Estrada and Scalia are not. Nor, by the accounts of people I trust, were Clinton's judicial appointees overall. Centrist, certainly. Mediocre, generally not.

My documents say Robert Scott Greacen. But my friends call me pi.

Unhappy with the comment "In Europe the problem of alienation will be compounded: not only is the EU an unpromising space for democratic life anyway, but the citizens of European nations will come to resent decisions that are fateful for them being taken by unelected foreign judges."

Wrong, wrong, wrong. Europe (in case anyone forgot) invented democracy and actually we're pretty keen on it. By many measures, we are more democratic than the US - which only has the 21st freest press by the way - and resentment is a strong word.

Yes, there is currently debate over the new Human Rights legislation written into UK law but this should be seen as a positive move.

The writer has a point that the law in the US seems to have been over-used to secure human rights victories which in other democracies would have been achieved by reforming governments. For a variety of reasons, the left in the US has been ham-strung and it seems that the courts are the last resort for reforming policies.

Personally, I note the fact that every leader with a left-leaning message in the US that I can think of has been shot. JFK, lots of other Kennedys, John Lennon, Martin Luther King, Malcolm X and so on. Oh, and the ENTIRE leadership of the Democratic party in Colorado in the 19th Century.

Gun reform? Hell yeah.