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May 27, 2003

Bad drugs: Chris Bertram of Junius returns to an old favorite question of Electrolite’s:
I should make clear that I’m actually in favour of non-discrimination, extensive social rights, protection for trade unions and so on (in case anyone out there was wondering). But I don’t think that judicial activism and constitutional “interpretation” is a good way to go about securing those goods. I don’t have an a priori answer to the question of how much judicial activism is a good or bad thing, but I am worried about using it to substitute for political argument, democratic decision-making and the hard slog of building a consensus around a policy. Surely some of what’s happened in the US over the last few decades is a result of the left trying to pursue its agenda through the courts. Doing this can foster alienation towards the political process, encourages irresponsible grandstanding in politicians who can posture in the knowledge that the judges will clean up afterwards, and is ultimately counterproductive. Counterproductive because it shifts the terrain of political struggle to the issue of who chooses the judges, and the right can pursue its agenda via judicial selection even more effectively than the left can over the long term. 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.
It can’t be noted often enough, of course, that American liberalism, specifically the civil rights movement, ultimatly resorted to “judicial activism” because after eighty years of post-Civil War “political argument, democratic decision-making and the hard slog of building a consensus around a policy,” large numbers of white Americans were still merrily treating black people like animals, with the full support of local, state, and national governments. This is a deep problem in the American body politic, evidence that we may actually be, at root, nasty and sadistic sons of bitches, rather than the freedom-loving good guys of our dreams. Nonetheless, Bertram’s point is fundamentally correct. Judicial fiat is a bad drug; like all bad drugs, it convinces us of things which are not true. We don’t have to argue with our annoying neighbors. At the end of Act Three, the god in the machine will come down and fix everything. History is a morality play in which good always prevails. As the man said: Maybe Not. [11:51 PM]
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Comments on Bad drugs::

Brock Lee ::: (view all by) ::: May 28, 2003, 01:10 PM:

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.

clew ::: (view all by) ::: May 28, 2003, 01:56 PM:

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.

lightning ::: (view all by) ::: May 28, 2003, 06:03 PM:

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!"

the talking dog ::: (view all by) ::: May 28, 2003, 08:50 PM:

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.

pi ::: (view all by) ::: May 30, 2003, 03:13 AM:

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.

Larry Lurex ::: (view all by) ::: June 04, 2003, 07:42 AM:

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.