Activist? You clearly don't have the same definition of activist that I do. Half the problem with these sorts of conversations is there is no agreement on definitions.
Please don't interpret my comment to mean that Supreme Court decisions can't be criticized, I just don't find the "activist" accusation to be particularly insightful.
Citizen’s United was “yeah, leaning pretty hard here.”
Flipping the hours d’ouvres table over on Roe v. Wade, a tense but stable compromise, that’s verging on activist. You don’t go knocking over fragile, workable standoffs that have held longer than an Ulster cease-fire if you can help it as a senior jurist.
It’s a pretty neo-neocon consensus to put it charitably.
It’s still the highest court in the land and it’s still binding, but I hope any thinking person is hoping for more a more“spirited but healthy” tension between major worldviews.
Citizen's United seems like a pretty clear cut case of individual rights from my point of view. If your definition of "activist" is strengthening individual rights and refusing to give power to the federal government and its giant bureaucracy then I guess I'm OK with an "activist" Supreme Court.
Roe v. Wade had been criticized for 50 years as an example of an activist judiciary and was held in place by rigid adherence to stare decisis.
Would you be as confident with stare decisis if we were talking about Plessy v. Ferguson, which held sway for 58 years before being overturned? Where the judges in Brown v. Board of Education of Topeka "activists"?
If "activism" is used to describe all sorts of political philosophy then it isn't really a useful term to bring to the discussion. I think it does have meaning though and that "activism" is not what conservative members of the court are doing.
Too much "Orwellian" language manipulation going on these days, IMHO.
I agree with most of what you said, but I disagree with this:
> If your definition of "activist" is strengthening individual rights and refusing to give power to the federal government and its giant bureaucracy then I guess I'm OK with an "activist" Supreme Court.
Activism is activism regardless of whether it "strengthens individual rights" or not. It would be ridiculous to argue Roe vs. Wade wasn't activist just because it "strengthened individual rights". What rights? Rights according to whom? You could justify pretty much any decision this way.
I'm not familiar with the details of the case in Citizen's United, but whether or not it constitutes activism depends not on the effects of the decision, but the reasoning by which it was reached.
Yes, the reasoning is definitely the problem with a lot of recent decisions. One thing that stands out in my mind is the majority opinion in the prayers in school case that stated that part of their reasoning to rule in favor of the coach praying was that he was doing so in private and players could voluntarily join him. When, as noted by the descent, the case itself included photographs of said coach, kneeling in prayer with his team at center court.
> Activism is activism regardless of whether it "strengthens individual rights" or not
My comment wasn't very clear, but I was trying to communicate that recognizing that the Constitution is centered around the idea of a limited federal government with explicit powers is not evidence of inappropriate "activism". Instead it is evidence of appropriate checks on federal overreach.
I don't know what to make of your statement "activism is activism". To be a useful term, "activism" needs to mean something other than "doing something" or "doing something that I disagree with".
My definition of judicial activism would be ruling in a biased manner to get a politically desired result rather than solely on the basis of the facts and the law as written.
You can rule in a biased manner in favor or individual freedom or against it. My point is that that's not relevant to the definition.
I do agree with you however that the current U.S. constitution is centered around the idea of a limited federal government with enumerated powers and that therefore an unbiased interpretation of the constitution as written will tend to result in rulings that support individual freedom in general, though that's not a hard and fast rule.
It can indeed be argued that Roe v. Wade was likewise activist, and it’s a failure of the legislature that a similarly workable compromise couldn’t have been done through proper channels.
But two wrongs don’t make a right and legislating from the bench for a net decrease in individual liberty via overturning a previous ruling runs contrary to the whole premise of stare decis (that’s Latin for “precedent” in case anyone missed that). Ruling from precedent has a lot of good properties, but maybe the best one is that it puts downward pressure on unbounded, escalating bench legislating.
Brown v. Board of Education was arguably overturning Plessy, though that was attached to specific language in the 14th Amendment, which is light-years from endless, muddy, subjective arguments around states rights like with Roe v. Wade. That question was settled by a war fought to a decisive military conclusion: red states don’t get to make draconian laws around individual liberty because we conquered them with guns. States rights “freedom” is subordinate to individual rights and freedoms via the landmark ruling in Union v. Confederacy. When it’s one interpretation of the Combined and Annotated Federalist Papers on one side and the armament of the high-GDP states on the other, well the victors make the laws. It’s a “happy accident” that the victors were on the right side of history.
Citizen’s United is the worst kind of judicial activism: tortured doctrines around corporate personhood being used to overturn a good law with good outcomes with broad bipartisan support (it was called the Bipartisan Campaign Reform Act for Christ’s sake) and it was a popular law that put downward pressure on the power of powerful institutions relative to the individual.
When the language of Locke and Rousseau is used to defend the life, liberty, and egalité of ruthless megacorps and and secessionist governors at the expense of the liberty of the common citizen: that’s Orwell hoss.
Without citizens united, a newspaper couldn't run an advertisement or an editorial about an biography of an active politician without running afoul of campaign finance laws- promoting a book that describes someone in positive light is clearly a contribution in kind, when column space in the paper costs money.
There's way more nuance that went into the decision than the "corporations are people" meme.
They have been hunting for cases to pursue their political agenda. It's probably the most activist court we've ever had. What is your definition of activist?
Your comment illustrates the problem. Do you think that everyone agrees that "activist" means "hunting for cases"? What does "hunting for cases" actually mean?
The term "activist" is often interpreted as "legislating from the bench" where the judiciary usurps the role of the legislature. Some people actually want that. Other people don't want that.
Refusing to solve a problem and instead requiring Congress to clarify the law is another judicial philosophy. Is that being an activist?
Deciding that the federal government has no authority and that state authority or individual rights are more paramount is also a course of action that some people agree with and some people don't. Supporters probably don't call that "activism" but detractors might.
So I think the term is mainly used to slur your political opponent as opposed to being a succinct term for some particular judicial philosophy.
This is just stating an opinion that you disagree with the philosophy. Do you think leftist judges also don't have a philosophy but just aim for outcomes?
There is no philosophy, it's just partisan politics. Some examples,
They are supposedly "originalist" except in their 2nd amendment rulings they ignore "A well regulated Militia" because guns is a Republican religion.
In banning Biden's student relief they ignored the text of the law and legislated from the bench just saying that it was unfair because the size was too "significant". Activism.
Last year they invented out of thin air the "major questions doctrine" to override the Clean Air Act and help polluters. Activism.
In 2022, without citing any principle, they said OSHA couldn't protect workers from covid. Activism.
When they gutted the Voting Rights Act they invented an "equal dignity of the states" doctrine. Activism.
To conservatives judicial activism is only a problem when liberals do it.
I don't feel strongly about "activism" being inherently good or bad (and don't agree with all of the outcomes in those cases) but I think your reasoning isn't great. For example:
> In banning Biden's student relief they ignored the text of the law and legislated from the bench just saying that it was unfair because the size was too "significant". Activism.
I think the majority opinion explains this quite clearly:
> The HEROES Act, Roberts emphasized, gives the secretary of education the power to “waive or modify” laws and regulations governing the student-loan programs. Congress’s use of the word “modify” means that the Biden administration can make “modest adjustments and additions to existing provisions,” Roberts wrote, “not transform them.” But the debt-relief program, Roberts stressed, instead “created a novel and fundamentally different loan forgiveness program.” The plan “modifies” student-loan laws and regulations, Roberts suggested, “only in the same sense that the French Revolution ‘modified’ the status of the French nobility — it has abolished them and supplanted them with a new regime entirely.”
(from scotusblog)
The Federalist Society, a political entity to alter the judicial branch, picked Neil Gorsuch while grooming many other federal judges who are then put in place by politicians. If you were put in place by activists, doesn’t that make you an activist judge?
Now you are just pushing "activist" towards meaning "having a legal philosophy". And in practice it means having the wrong legal philosophy with respect to the person who labels you an "activist" as opposed to having a particular philosophy.
It isn't a particularly useful term because no one agrees on what it means. This has been illustrated quite nicely by the comments to my original comment.
No. Particularly when one of the primary goals of that activism is to produce judges who aren't activists:
> [The Federalist Society] is founded on the principles that [...] it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
Judges are “activist” as a political label only when they rule in a way that you don’t like. It is a meaningless label generated by politicians to get them to vote for them and put in different judges who will vote the way they think you want! And that’s not activism?
You and I clearly have different ideas of what constitutes judicial activism. What would you consider to be "non-activist" then, if ruling based on what the law says rather than on your personal politics is itself activist?
Laws are not boolean logic that are cut and dry, otherwise we wouldn’t need human judges.
The federalist society is a well funded organization whose goal and track record is to install conservative judges to interpret the law in a very specific way, all the way up to the Supreme Court. I’d that’s not activism then I don’t know what is.
I don't disagree the Federalist Society is activist. I'm saying the judges they produce aren't, because that "very specific way" is "follow the law, not your political biases" which is, by definition, the precise opposite of judicial activism. It sounds like you disagree with that definition of judicial activism, but you haven't provided a better alternative.
To preempt the answer you've given elsewhere in this thread "they rule in a way that you don’t like" isn't a good definition, and seems from my perspective like an attempt to muddy the issue in order to allow you to put activist judges on equal moral footing with those who actually follow the law. You are correct that its impossible to eliminate all bias, but responding to that reality by throwing up your hands and saying "I guess everyone's an activist then, judges should just ignore the law and rule based solely on their personal biases instead" definitely isn't helping the situation. There's a spectrum here, and The Federalist Society has as one of its explicit goals encouraging judges to move towards the non-activist side of that spectrum.
But they’re not “following the law, not a political bias.” The political bias is contemporary conservatism, which in reason years has meant making abortion illegal, allow corporations as many rights or more than citizens, allow infinite secret money in politics, remove as much regulation and federal agencies as possible, reduce civil rights particularly for gays/trans/people of color, get rid of affirmative action, extend “religious freedom” into new and every aspect of life including as a precursor to ignore any existing law, prevent any kind of mandatory public health response, etc etc.
Everything I mentioned is not only a stated goal but has already happened. They are getting the results for which they continue fund raising. Now conservative Supreme Court judges are inviting new areas, such as when Thomas said he’s hoping for a new suit to shut down gay marriage after killing roe v wade. Trump even said he appointed judges specialty that will kill Roe v Wade. How is this not activism?
I would posit that the vast majority of that is you reading court decisions through the lens of your own political biases.
Roe vs. Wade wasn't reversed because the judges thought abortion was wrong (though they may indeed think that). It was reversed because Roe vs. Wade was a ridiculously convoluted ruling by an activist court that created a constitutional right to abortion out of thin air when a plain reading of the text of the constitution makes it obvious it contains no such provision. But if you're looking at this solely through a political lens and see it as the court "making abortion illegal" (which it actually didn't even do, it just reversed the previous ruling that was preventing states from enforcing their own longstanding laws on the subject) then its understandable why you might (incorrectly) see that as activism.
In contrast, a right to "religious freedom" very obviously does exist in the constitution, in the very first sentence of the bill of rights, and racial discrimination (affirmative action) is banned by the 14th amendment. There's room for debate as to exactly how broadly those freedoms were originally intended to be applied, but its not obvious to me on its face that those cases were decided incorrectly due to "activism" either.
The rest of your accusations are so vague that it's not clear to me what they're even referring to.
the current court solidified itself as an activist court by taking on a litany of controversial, yet already decided cases one after another that were all lined up by the same organization that not only lobbied for their placement on the court, but even went so far as to line up a billionaire buddy system to make them more comfortable financially so they wouldn't retire from the court during a democratic administration.
I think it's pretty unlikely that the Chevron doctrine would be overturned completely. The specifics of the case before the Court involve a case where the NMFS has interpreted a fisheries act to require fishers to pay the salaries of government monitors, simply because the act does not specify who should pay the salaries. The more reasonable objection is whether "reasonable interpretation" under Chevron should be limited to prevent the creation of affirmative powers out of thin air. As Wikipedia puts it:
> Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
The initial "overrule Chevron" seems like a DITF [1] and the latter is probably what the plaintiffs are hoping to achieve. Granted, I find it hard to trust a Court that overruled PP v. Casey, but most of this Court's other rulings, at least, have not been as extreme.
Usually I challenge people when they call a court stacked or activist, because it’s just so rarely true: this is as close as you’ll (hopefully) see to a 1-bit high court.
It’s the masterpiece, the magnum opus of the Magnus of parliamentary politics. Nicollo Machiavelli doesn’t have shit on Mitch McConnell at that chess game.
I’m pretty indifferent to which color bumper-sticker late capitalism is sporting when it pushes the newest round of formerly “looking forward to better” working people below the waterline, it’s not a partisan thing.
The other team have plenty who match Mitch on evilness, but zero on skill.
