Sheridan: Con-Law

WHAT IS ACTIVISM?

This, from the Conlawprofs list:

I think it obvious, but nevertheless worthwhile pointing out, that the term "activism," if it has any serious meaning at all, depends on a correct theory of constitutional interpretation, or one deemed correct by the speaker.

Prof. H.S.

Personally, I find it useful to think of "activism" in terms of three distinct issues:

1.  the willingness (or eagerness) of a judge to overrule the judgment of a legislature (in any of several ways)

2.  the willingness (or eagerness) of a judge to depart from past precedent

3.  the willingness (or eagerness) of a judge to depart from the "correct" mode of constitutional interpretation.  The last one is certainly dependent on a prior judgment, but the first two are at to at least some degree measurable phenomena.

Prof. RJL then says he agrees that Nos. 1 and 2 can be measured, but he can't judge eagerness, it being a bit subjective, and regards #3, nevertheless as the one that counts.

How would you define "judicial activist?"

One of the problems in studying this area is that we tend to accept the world as it is, if we're more or less happy with the way things have been going during our lifetime.  This makes it hard to think, well, things would've been different had there been no Civil War and 14th Amendment, or Depression and New Deal, with resulting changes in societal attitude and views of the Court.

It takes a lot of energy to say that landmark cases since, say 1964 (Griswold/privacy), or 1954 (Brown, public school integration, equality), or even 2003, (Lawrence, liberty, equality) ought to be wiped off the board as wrongly decided.  It's too late.  They've been welded into the iron framework of the skyscraper, now.  You want to scrape them off?  You're liable to cause the building to collapse.  If you want to see departures from them, how about leave them alone and work around them.  We'll see what you're doing, and then we'll make the appropriate corrective when the pendulum swings back in awhile, as it typically does.

Maybe you have a better idea.

ALL YOU NEED TO KNOW TO FOLLOW THE NOMINATION PROCESS

Orin S. Kerr, a conlawprof from George Washington U. Law School has written a cheat sheet on how to follow Supreme Court nomination political-speak.  All you have to do is to pick one item from Column A or one from Column B  and you'll have a meal that half the country will find indigestible.

I wonder if Kerr is a liberal or a conservative.

I wonder what a liberal or a conservative is.

I wonder if anyone has come up with a liberal-conservative, Column A-B matrix for classifying.

I wonder how many such matrices, on how many levels, one would need to do that with any reliability.

One of the neat little problems of Conlaw is that you could be a liberal on social relationships but a conservative on federalism or separation of powers.   A liberal on the commerce power but a conservative on equal protection or due process.  A liberal on free speech and a conservative on interpretation of the text of the Constitution, and so forth. 

Gonzales v. Raich, the recent marijuana case, or was that a federalism case, or a states rights case, or a commerce power case, or a textualism case, or an evolutionary document case? 

Was NYT v. Sullivan just a libel case?  Or a freedom of press case?  Or a freedom to criticize public officials on matters of public concern case? 

In other words, substance v. process on a lot of issues.  Since each justice is a mixed bag on a host of issues, all intersecting at various places on the various spectra, and we have nine justices, the combinations make for a lot of unpredictability, don't they.  Of course.  Otherwise we wouldn't need all those long opinions.  We could just program a computer to play supreme court chess with each justice's known proclivities and just punch in the issues in the latest case to find out how it's going to come out.

People, however, are somewhat more subtle than computer algorithms, and the justices would no doubt confound the program without even trying.

A lot depends on how you slice baloney.

See Kerr's cute article, below.

BEWARE OF ACTIVIST JUDGES!

Okay, but how will I know one if I should see one?

Well, that should be easy, right?  We hear conservatives hollering "activist judges" all over the place all the time, so, to find an activist judge you'd want to find out who the liberals are, I guess.

Wrong, again.

According to this study by a Yale law professor Paul Gewirtz and his trustee student aide, Chad Golder, appearing in the New York Times today, the first thing  you have to do is to ask what "activist" means. 

Is an activist judge one who jogs to work or someone who strikes down legislation as unconstitutional more than his or her fair share. 

Don't forget, we must allow for clear cases of unconstitutionality where even conservatives would strike down a law passed by Congress or one of the many other law-making bodies in this country.  They include the states, city councils, and executive agency rules, state and federal, such as made by administrative agencies of all kinds.

Administrative agencies make up a lot more rules than Congress because that's their job.  Congress and other legislative bodies typically delegate this rule-making power of theirs to agencies that they set up to become expert in various areas in order to regulate them with, you guessed it, lotsa rules.  And enforcement agents like the game warden and the chicken inspector..  We have a ton of agency rules. And inspectors.

It turns out, according to Prof. Gewirtz's study of voting records of the nine Supreme Court justices since 1994, which is how long the current group has been assembled, the most active judge is the most conservative judge:  Associate Justice Clarence Thomas.  He's a mean man with John Marshall's Axe, smiting, or voting to smite, more than his fair share of allegedly bad law, meaning allegedly unconstitutional law.  When it comes to trashing Congress and the other political (read:  more democratic) branches, Thomas is liberal, the arch-liberal, in fact.  Whodathunkit?

And who is the most conservative justice when it comes to trampling Congressional legislation underfoot?  None other than Stephen Breyer, the liberal conservatives love to hate.  He's more conservative than the conservative they love to love, Clarence Thomas.

I don't geddit.

Here I thought one thing and it turns out something else is the case all along.  Must be something wrong with me.  It's time to go back to the books and recalculate this whole equation.

Here's the NYT article showing the lineup of most active to least.

After you've figured out why this is, you can explain it to me, thanks.

The online version, linked above, fails to include the following table which appears in the print version:

In order of greatest inclination to invalidate Congressional laws, from greatest to least, the following:

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

The next study I'd like to see is one that tests for who's a conservative and who's a liberal and what the criteria will be for determining.

What I can tell you is that all legal battles before the Supreme Court worth noting over the past four decades have been a fight between the conservatives and liberals, economic or social, religious or political, which may be the same thing more or less.  At least that's how the newspapers keep score.

The news media is famous for boiling everything and everybody into one word labels.  If you're for or against something, you're an "activist."

If you're active politically, you're a liberal or conservative or some variant in between, or outside the lines, you know, in foul ball territory.  The Abolitionists were in foul ball territory.  They were against slavery before it became fashionable.

Why do reporters and editors do this?  Because they have to get an idea across in one word or less, so they hang labels.

Politicians do the same thing.  You have to hang a label on your opponent, and vice versa, to get an idea across to a roomful of people or a nation where TV networks gear their program to the average twelve year old.

Not quite entirely off the point, have you ever noticed that some people seem to have stopped thinking, that is they've closed their minds at certain age or education levels, while others try to keep an open mind, at least about some things?

Why do people close their minds.  I can think of some who bow to certain realities of married life and adopt the views of their spouses, never questioning, probing, and certainly not challenging, to avoid disharmony in the relationship.

I suspect others do the same to remain cordial with their peer group, whether it be religious, political, social, or other.

Once tied to a person or a group, there's no sense looking further, is there, otherwise you might find yourself shunned.

Shunning is an old practice akin to ostracism, especially in some tight-knit religious groups.  Excommunication is the $64 word for it in the big ones.  But in the smaller groups such as (perhaps) the Amish, shunning meant you weren't spoken to any more.  You probably got the point and headed West to avoid the silent treatment.

Do you know where the word "ostracism" comes from?  In ancient Athers, troublemakers were banished by means of a vote cast into a jar using a broken pottery shard, called an ostrokoi.  When you got the shard, you got the shaft, and were a goner, literally, banished for a period of time or for good. 

Where were you going to go when you got banished from Athens?

San Francisco?

I don't think so.