Oklahoma's next Governor

[nathanm]

Yeah, calling them "reactionary" or "activist" judges can be roughly interpreted as "I didn't like the judge's ruling."

Every once in a rare while, you'll see someone use it to mean that a judge decided to go far beyond the bounds of deciding the case before them and issue sweeping new rules or strike down parts of a law that were not part of the case. I think that's a reasonable use of the phrase "activist judge." It's usually code for something else.

[Gaspar]

Every once in a rare while, you'll see someone use it to mean that a judge decided to go far beyond the bounds of deciding the case before them and issue sweeping new rules or strike down parts of a law that were not part of the case. I think that's a reasonable use of the phrase "activist judge." It's usually code for something else.

It's not really a vague definition at all.  It's quite simple.

An activist judge is one that tries to legislate from the bench. . .A judge that is more interested in changing the law than ruling on it.  When judges attempt to change the law through judicial action against the established will of the people (the law), this classified an activist judge.

The job description of a judge is to rule, according to the word and intension of written law.  For cases where the law is vague or absent, the supreme court has the ability to establish new guidelines (law).  Activist judges abuse this power by ruling against existing law, usually drawing precedent from vague constitutional reference.  The ruling itself becomes precedent for additional layers of activist ruling.

This gives a judge (and the philosophy he/she embraces) the ability to rule against the will of the people (established legislative law).  While it is not illegal for a judge to be activist, it does raise ethical concerns, and concentrates too much unchecked power in one place. 

The choice of a judge should be agonizing.  This position in government offers the greatest opportunity for abuse of power, and the decisions made by a judge are very difficult to turn.

[waterboy]

Remember, everything is quite simple for this guy.

[Gaspar]

Remember, everything is quite simple for this guy.

LOL, I just don't see the necessity to constantly redefine things to make them fit into some non-functional paradigm.

[nathanm]

It's not really a vague definition at all.  It's quite simple.

An activist judge is one that tries to legislate from the bench. . .A judge that is more interested in changing the law than ruling on it.  When judges attempt to change the law through judicial action against the established will of the people (the law), this classified an activist judge.

The job description of a judge is to rule, according to the word and intension of written law.  For cases where the law is vague or absent, the supreme court has the ability to establish new guidelines (law).  Activist judges abuse this power by ruling against existing law, usually drawing precedent from vague constitutional reference.  The ruling itself becomes precedent for additional layers of activist ruling.

What exactly is "legislating from the bench?" Can you provide examples of activist judges? Can you provide examples of similar cases decided differently by a judge you don't consider "activist?" If you can't, you've just proven the meaninglessness of the term.

The Roberts court has been activist by your definition, if I'm understanding it correctly. So was the Rehnquist court in Bush v. Gore. Or is it not activism when you're overturning law not pleaded in the case before you?

[Cats Cats Cats]

Every once in a rare while, you'll see someone use it to mean that a judge decided to go far beyond the bounds of deciding the case before them and issue sweeping new rules or strike down parts of a law that were not part of the case. I think that's a reasonable use of the phrase "activist judge." It's usually code for something else.

The real definition is after watching your first 100 hours of Fox news everybody is an activist judge.  I never heard so much complaining about judges until fox news started it.

[Gaspar]

What exactly is "legislating from the bench?" Can you provide examples of activist judges? Can you provide examples of similar cases decided differently by a judge you don't consider "activist?" If you can't, you've just proven the meaninglessness of the term.

The Roberts court has been activist by your definition, if I'm understanding it correctly. So was the Rehnquist court in Bush v. Gore. Or is it not activism when you're overturning law not pleaded in the case before you?

Actually this judicial classification dates back to the 50s. . . and yes it is a political football used by each party.  Just as we are all bias to our points of view, all judges can be classified as somewhat activist.  The goal is not to take a "single example" and hold that as evidence of Judicial Activism, but to take a body of work and weigh the degree of Judicial Activism applied over a career.

This is precisely why a judge's record is so important.  It should paint a picture of the law.  When that record as a whole goes against the law, and establishes more new law than upholding existing precedent, you have an activist judge.

http://www.constitution.org/lrev/kmiec/judicial_activism.htm

[Gaspar]

The real definition is after watching your first 100 hours of Fox news everybody is an activist judge.  I never heard so much complaining about judges until fox news started it.

Oh, and Trog.  This is the definition given by Fox's Andrew Napolitano, "There is no such thing as an activist judge. An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest."

The term was thrown around more by Mr. Harry Reed over the last 8 years than ever before.  He really made it a household word. 

[Conan71]

Talk about a topic going totally over a cliff...

[nathanm]

This is precisely why a judge's record is so important.  It should paint a picture of the law.  When that record as a whole goes against the law, and establishes more new law than upholding existing precedent, you have an activist judge.

That's an exceedingly poor definition. If precedent clearly flies in the face of a reasonable interpretation of the Constitution, it ought to be thrown out. Even if it has to be done often. Scalia is big on that, it's one of the things I like about him.

I hope when you wrote "when that record as a whole goes against the law" you really meant "when that record as a whole goes against the Constitution".

I don't get what you mean by "new" law created by judges. The only thing I can think of that comes close is injunctive relief requiring specific performance?

In any event, it sounds like you don't consider the judiciary to be equal to the other branches of Government.

[Gaspar]

That's an exceedingly poor definition. If precedent clearly flies in the face of a reasonable interpretation of the Constitution, it ought to be thrown out. Even if it has to be done often. Scalia is big on that, it's one of the things I like about him.

I hope when you wrote "when that record as a whole goes against the law" you really meant "when that record as a whole goes against the Constitution".

I don't get what you mean by "new" law created by judges. The only thing I can think of that comes close is injunctive relief requiring specific performance?

In any event, it sounds like you don't consider the judiciary to be equal to the other branches of Government.

Good, you've touched on the "branch equality" topic.  The constitution provides for three separate but equal branches of government--legislative, executive, and judicial. Together, these branches make (Legislative Branch), execute (Executive Branch), and interpret (Judicial Branch) the laws.  They have equal, but very different powers.

The President cannot make a law without the consent of congress, and that law must also be deemed constitutional by the supreme court.  Congress cannot make a law without a signature from the president and that law can also be constitutionally tested by the supreme court.  But. . . an activist judge can rule on a case that establishes, by judicial precedent, the law without the consent of congress, or a signature from the president.  This gives the Judicial branch more power than the other branches.  It is thus the responsibility of a judge to exercise significant restraint.

[heironymouspasparagus]

The term may date back to the '50s, but the act goes back to the very beginning of the country.

And appointments of judges have only ever been political footballs. 

What is truly incredible to me is how well this whole mish-mash has worked for the history of the country!  Especially given the way we started.

Pretty wonderful most of the time!!

[waterboy]

Thanks for the 10th grade political science summary, Gas. However, I doubt your understanding of law is any deeper than that and I'm surprised Guido is letting you get away with such simplicity. All you left out is the phrase, "I'm no lawyer, but...." He must be squirming at least.

My take, though, is simple as well. They aren't just equal powers, they are checks and balances of power. Those checks and balances are always in struggle. When one area overpowers another, one or both of the others will react. Thus it is true they are all reactionary, but not in a bad way.

The executive branch also "creates" law with many clever uses of administrative power. I seem to remember white papers, policy statements, lack of enforcement policies etc that in effect counteract the intent of the legislative bodies' powers and in effect expand the executive branch. How else could we have fought so many undeclared wars?

The legislative branch undoubtedly has its own little quirks that allow sidestepping of their only function which is to budget, create law and directly represent their constituents. Yet, we often go without budgets, they often use parliamentary devices like filibustering to avoid votes and they convene to investigate alleged wrongdoing just like an executive branch might be expected to do. They pass laws to appease the people, then refuse to appropriate funds to make them operable. Best I remember they have the power to declare war. Last happened in the early 1940's, right?

Yet, all the right can do is talk about judges creating law. Its as meaningless as "welfare mothers". The Fox guy was dead on when he described it as judgemental (ha! a pun!). Totally meaningless red herring.

[rwarn17588]

But. . . an activist judge can rule on a case that establishes, by judicial precedent, the law without the consent of congress, or a signature from the president.  This gives the Judicial branch more power than the other branches.  It is thus the responsibility of a judge to exercise significant restraint.

So ... if you were a Supreme Court judge, would you have exercised such restraint in a landmark case such as Brown vs. Board of Education?

[Conan71]

Guys, start a new thread this is bad even by TNF standards for thread drift