Buchanan repeated false dichotomy between judicial activism and conservatism
SUMMARY: Discussing David Souter's reported plan to retire from the Supreme Court, Pat Buchanan repeated the myth that conservative judges are by definition not activists.
During the May 1 broadcast of MSNBC's Morning Joe, while discussing U.S. Supreme Court Justice David Souter's reported plan to retire, MSNBC political analyst Pat Buchanan asserted that "conservatives do have and Republicans do have a real good issue on the court when you ask people, 'Do you want conservative constitutionalists as justices or liberal activists?' " However, as Media Matters for America has repeatedly noted, a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the biggest practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress.
Gewirtz and Golder stated that "one reasonably objective and quantifiable measure of a judge's activism" is "[h]ow often ... each justice voted to strike down a law passed by Congress." Based on that criteria, Gewirtz and Golder found that -- notwithstanding the myth among conservatives and many in the media that liberal judges are the real "judicial activists" -- Justice Clarence Thomas was the most likely to strike down federal laws, followed at the time by Justice Anthony Kennedy and Justice Antonin Scalia. Justices Ruth Bader Ginsburg and Stephen Breyer -- the only two current justices appointed by a Democratic president -- were the least likely to do so.
From the May 1 edition of MSNBC's Morning Joe:
SCARBOROUGH: You know, Pat, if I were President Obama, a progressive that got elected president of the United States, I would say, OK, the only thing that George Bush got right for the conservative movement -- he got Alito right, and, of course, he got John Roberts right. I would scour the country to find a 45-year-old progressive, somebody as engaging as John Roberts, and put him up there.
BUCHANAN: You know, I think John is exactly right, that what you want is a Stephen Breyer type --
JOHN HARWOOD (CNBC chief Washington correspondent): Technocrat.
BUCHANAN: -- who was noncontroversial, but he votes right down the line liberal. Solid on that, but he doesn't come in as a Joycelyn Elders flamer --
SCARBOROUGH: Right.
BUCHANAN: -- or something like that that which will set off all the conservatives. Because the conservatives do have and Republicans do have a real good issue on the court when you ask people, "Do you want conservative constitutionalists as justices or liberal activists?" They win that hands down. So I think he ought to go with a Breyer type, too.
I find it laughable that conservative justices finding some laws passed by Congress as unconstitutional repreresents some sort of judicial activism.
Correct me if I am wrong, but isn't that part of their job?
Well... how would YOU define judicial activism? That sure sounds like "legislating from the bench" if you aks me! And personally I have no problem with it as long as they're making more things legal, by STRIKING DOWN LAWS, rather than taking our freedoms away in the name of religion or corporatism.
The way to solve many of these issues is through a through a constitutional amendment. That way the law is clear, and there is much less interpretation needed. Many states amend their constitutions on a fairly regular basis.
Yes, but all State Constitutions are still subserviant to the U.S. Constitution. A State cannot ammend it's contitution in an un-constitution manner.
Right on Nice Guy! It really is that simple, SCOTUS is beholden to the constitution not the legislature. They are co-equal branches of government. As far as I'm concerned GOP nominees are the activists. Anyone remember the 10 Commandments Judge Roy Moore of Alabama, an active partisan and social conservative? That's their ideal for the judiciary. The MSM seem to have blinders on or very short memories.
I'm curious, what freedoms do you think the SC has taken away in the name of religion or corporatism?
There two answers here. (And I'm going to go a little PALIN on you, because I can't rattle specific case-names off the top of my head. Sue me, I'm not running for VP.)
1st, an example to answer your question directly.: Last year (it may been 2007) they ruled agianst the freedom of speech for a student in the "Bong hits for Jesus" case. In doing so, they opened the door to allowing the court to decide what was "decent/indecent" - basically meaning that THEY could now limit speech - rather than (as the should have done) ruled in the defesne of free speech, and said (basically) It's NOT up to the court to decide what's "decent," you have a right ot free expression, PERIOD. That SAME court then ruled IN FAVOR of a corporation (I'll be honest I don't recall the details) claiming that IT'S free speech was being violated by campaign finance laws and laws restricting corporate political ads during election season. So... COMPANIES should have unrestricted free speech, but PEOPLE should not. Nice.
NOW... (because that didn't involve religion directly) Let's look at the issue of GAY MARRIAGE. Is there really ANY reason not to let gay's marry that DOESN'T involve religion? Can you think of ANY OTHER contract that legal adults are prohibited from entering based on their gender? Yet do you see justices Altio-Scalia-Thomas-Roberts EVERY voting to overturn discriminatory state laws or state-cons in order to protect the rights of the individual? They've had some opportunities (short of the marriage issue) and they've voted consitently to uphold not only discriminatory laws of the States (religion) but of Corporate, Company policies as well (Corporatism.)
And let's face it, one more concervative in the Altio-Scalia-Thomas-Roberts mold on the court and you'd have prayer in school, ID or even creationism in the classroom, an overturning od Roe v Wade that wouldn't even allow rape or medical exceptions... do you refute any of this? You know how they lean. Do you really think they'll protect us from either the State, the Church or large Corporations? Name one case in which they have!
Yes, just as it is when liberal justices find statutes unconstitutional. That doesn't stop conservatives from calling them "activists" who "legislate from the bench."
Yes it IS part of their job but what does judicial activism MEAN? It seems to mean judges doing anything the rightwing doesnt like and if you have NO yardstick then you just ALLOW the right to use that definition. They just say those judicial activists that dont strictly conform to the rightwing philosophy
"Yes it IS part of their job but what does judicial activism MEAN?"
They want strict constitutionalists which means if it aint in the Constitution it’s not a right but they're looking at the Constitution the wrong way. The Constitution limits the power of gov't and judges are suppose decide if the Constitution forbids the state from doing something, not whether you or I have a right to something. We have a right to everything.
EXACTLY!!! Regardless of how the right -ing interprets (or misinterprets) the Constitution, the SC's job is to strike down laws passed by the gov't that go too far in infringing on OUR FREEDOMS! Striking down laws, IOW judicial activism, is the whole PURPOSE of having that check and balance on gov't power! (Marbury v. Maddison) ANY judicial action that increases our freedoms (and that's REAL freedom now, not the orwellian freedom that hard-right-wingers seem to want us to comply with) is fine by me. (And yes, that includes 2nd ammendment cases - the one issue I'm bascially with the conservatives on.)
Loonz, they think they want that, but "strict constitutionalists" would laugh in the face of a "marriage amendment" or that the Supreme Court/Congress etc had any right to step in the way of states when deciding on abortion availability.
Go ahead and give us your definition of judicial activism, AA. It is their job to interpret the laws of the legislative branch. However, wouldn't you agree that those who find the most wrong with the elected will of the people might be acting as activists?
Fried.
The job of Justice is not to follow thw common trends or will of the American people at the time. it is to interpret laws as you say, but also to make sure they are constitutional. Laws that are to broad, or vague should be struck down. Roe v wade is clear legislating from the bench, as the constitution says nothing about a "right to choice" or "privacy".
stare decisis lasts only as long as the courst says it does. It is an order from a higher court to a lower court, and the Supreme Court never has, and never will be bound by it.
So, what you're saying is that you feel that all judges do what they feel based on their interpretation of the laws of the land, which makes them all, in some ways, activist, correct?
My problem is with judges who clearly go beyond what the law states, and create or manufacture a new right where no right existed before. This clearly applies to roe v wade.
No it DIDNT clearly apply. Ninth amendment destroys your argument
You didn't answer my question, POV.
Niceguy, that's your intepretation, and a very liberal one. In my opinion, privacy has nothing to do with whether you're breaking the law or not.
It's way more then MY interpretation. It's been the interpretation of the court MANY TIMES, and also of MANY Constitutional Scholars. And it's not liberal, it's libertarian. (You know... those people that want to limit the power of gov't? People that used to make up a good portion of the REPUBLICAN party?)
I still think your specific interpretation is a revolving door into something that isn't there. For instance, you say the 1st amendment implies the right to privacy (I was taught it was the Equal Protection clause, but w/e); what specifically in the amendment gets you to that conclusion?
Wrong. These things are ALL implied by the first ammendment. You can't have ANY of those thing without privacy. OVERTURNING Roe would go against th eprincipal stare decisis, and would be far more of an 'activist' role. Plus it takes away a freedom that the court had restored - IOW passing a law, from the bench.
The state tried to limit a woman's freedom in ROE v. Wade and the court said the fourteenth amendment forbids the state from acting.
WRONG. I know that is the rightwing talking point but it doesnt even make SENSE. The ninth amendment says
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
<<<<<<<<<<<<<<<<<<<<<<
Which is EXACTLY what your argument would do. Say that since THESE rights are pointed out then if it ISNT pointed out in the constitution then you dont have that right. Well the ninth amendments says directly that argument is pure bull.
The constitution was written in broad principles and NOT explicit detail so it COULD evolve with societal changes whether YOU like them or not.
And exactly how many cases cite the 9th amendment like you suggest it be used here? The fact that the constitution says that other rights exist is of little value. By that argument, the entire issue of gun control would be a mute point. Just because it is not forbidden, does not mean that any "right" You want to exist magically exists because You want it to.
How many citations there are of the ninth amendment is irrelevant. YOU say the ninth amendment is of little value? Would that be because that really silly statement is the only thing that floated to the top of your head to bolster your weak argument that the ninth amendment DIRECTLY refutes? No it doesnt make any argument moot. It doesnt say ANY right exists or EVERYTHING is a right that is a false dichotomy. Just because some rights DO exist is not evidence that anything is a right. It isnt what I want it is what the Supreme Court SAYS. A weak strawman. Are you going through the logical fallacies one by one till you use them all? No one is is suggesting I make rights to suit myself but that the Supreme Court is NOT restrained from recognizing rights by the very rationale you used that if it isnt in the constitution it doesnt exist. Other rights DO exist and if the SC recognizes one your weak argument that it DOESNT exist because it isnt in the constitution was anticipated and refuted BY THE NINTH AMENDMENT.
You're equating apples to oranges. Your right to a gun impacts not just you but everyone in a society so the state can put limits on it. In other words, if you're doing something that has an impact on another citizen, the situation has to be litigated.
My brief definition is below.
I do not agree with your statement. The SC is not to carry out the will of the majority but to protect the minority from the majority. If the will of the people is contrary to the concepts found in the Constitution, it is not judicial activism when the Court overturns those laws. It is when the Court creates rights not found in the Constitution that it becomes activist.
We have unlimited rights. It's the states whose rights are limited.
We do NOT have unlimited rights. That is the most crazy statment I have read here.
Yes we do.
You're absolutely, positively, wrong. The Federal government's rights and powers are limited, and the Constitution specifically says all those not specifically granted to the Fed belong to the states. The states are really supposed to be "WE", not the Fed.
Ah not exactly the PEOPLE is WE as in WE THE PEOPLE.
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What I'm saying is that we have a right to everything imaginable until the state limits it. They just have to stay within constitutional limits. My opinion is the state should not be poking its head in anyone’s business unless it affects another citizen.
I didn't say it was the job of the Court to carry out the will of the people. I just said that the justices who disagree the most often were probably more activist in their thinking.
What do you think of the 9th and 14th amendments to the Constitution.
I find it laughable that liberal justices finding some laws passed by Congress as unconstitutional represents some sort of judicial activism.
Yes, you are right. It is part of the their job. Otherwise, what would they do?
Buchanan's assessment aren't really all that bad for him, but the idea that conservative judges aren't activists is still laughable. What we need is a supreme court that believes that (regardless of polictical leangings) their job is to defend the freedom of individual citizens when congress/the president/the states pass laws that go too far in inhibiting our freedom.
Personally I'd like to see no more than 3 "conservatives," no more that 3 "liberals" and have at least 3 HONEST "swing votes" in the middle. Right now, on any politically divisive issue, you really only have to coinvince Justice Kennedy and you've won. That's not a good situation matter what side you're on.
Nice,
The role of the SC is to defend the rights of citizens in accordance to the the original intent of the framers of the Constitution.
Judicial activism is, in my view, going beyond the limits set by the Constitution. An example is the "right to privacy" which does not exist in the Constitution but was created out of the 'penumbra' in order to justify judicial activism.
In my view, the role of the court is not to create new rights or remove old ones. It is simply to resolve disputes regarding laws passed by Congress and the States based on the original intent of the Constitution.
Your arguments are repititions of rightwing talking points that dont even make sense. NO original intent is what a lot of you wingnuts WANT their role to be but its dumb. It would reduce the justices to mind reading dead people or seances.
You argument about the right to privacy flies DIRECTLY in the face of the ninth amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
YOU are saying that since it ISNT enumerated IN the Constitution then it doesnt exist and the ninth amendment DIRECTLY refutes this weak, tired, and cliched talking point.
Solon,
Show me where I said, "YOU are saying that since it ISNT enumerated IN the Constitution then it doesnt exist".
You are creating a straw man argument.
The ninth amendment does not create any new rights.
What it actually says is that the people retain the same unenumerated rights that they had before the Constitution. In this case it means that the Constitution cannot be used against the peoples' right to freedom. The rights granted by the Constitution cannot be used to eliminate other rights.
The nineth amendment is not a free pass for the people where new rights can be created out of thin air.
However, I'll grant you that it is a controversial amendment and still the subject to various interpretations.
NO, there is NO strawman there. You said THIS
An example is the "right to privacy" which does not exist in the Constitution
If that doesnt mean since it isnt in the constitution it doesnt exist exactly what DOES it mean?
Your interpretation is fanciful. You got your degree in constitutional law WHERE AGAIN? Because that is not what it SAYS what it says is the fact we are saying you have THESE rights in no way means you dont have OTHER rights.
That is YOUR opinion and it is stated in a very self serving way. How about they RECOGNIZE that privacy is a RIGHT all people HAVE? HAVE had? What was the point of the fourth amendment if not to protect privacy? This isnt your decision and CLEARLY the Supreme Court disagrees with you.
Whatever you grant it is CLEAR that your argument that if it isnt in the constitution then you dont have the right is flat out wrong. The ninth amendment says so directly.
I (along with the majority of Constitutional scholars) disagree. Almost all of the bill of rights depends on a right to privacy. This issue has been debated and closed. Without an implicit right to privacy, the court has reasoned on MANY occasions, you can't truly have any of the rights explicitly granted. Plus it is clearly stated in the 14th ammendment that the Bill of RIghts is not an exhaustive list. It clearly allows for what you are objecting to.
Sorry... I meant the 9th!!!
It has been debated, but in no way has it been closed. if you were in fact correct, the SC would no longer take cases relating to roe v wade, internet porn, search and seizure, or a whole host of cases that they do. They take these cases because the so called right to privacey is very much an open question.
Actually your attempt at a point is a false dichotomy. Just because you have a right doesnt mean it is absolute. You have a right to free speech but that doesnt mean you can say ANYTHING if you lie to a police officer it is a crime if you commit fraud by convincing someone to give you their money under false pretenses it is a crime. So the fact they are further drawing the line between a right they recognize and just how far that right goes is NOT evidence the right itself is not considered closed law.
NGE,
Do you have anything to back up your contention that the majority of Constitutional scholars disagree?
It would be very interesting if you could provid a link or two backing up your contentions.
Besides that, I have no objection. I simply believe that the Constitution has to be interpreted according to the original intent. To do otherwise means any court could at anytime say their interpretation of the Constitution, no matter how far afield from the original intent, is the interpretation. Therefore the Constitution ceases to have any meaning other than what the court decides. Taking an originalist stance protects both the liberals and the conservatives from each other. Being an originalist is not a bad thing at all, rather it is good.
And how would that practically be done? Would they appoint ONLY psychics that can read the minds of long dead people or would they hold seances at the Supreme Court? Original intent is a chimera
You're still under the impression the Constitution was written to put limits on you or I. It puts limits on the government. They were afraid of the government having too much power basically becoming the English monarchy.
The fourteenth amendment forbids the state from depriving any citizen life, liberty or property; hence the state cannot limit my freedom.
They can and do limit your freedom in any number of ways. If you dont believe that, than exercise your freedom to walk down the middle of town naked tonight, and see how far your argument gets you.
That affects other citizens so the state can limit it.
Then what do you call the Fourth Amendment? Fiction?
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Sounds like the right to privacy to me.
I like your breakdown of desirable judges, although personally I'd like to see 9 swings.
Oh, me too. Especially if they all come from different schools of thought RE freedom, the state, law, activism, the constitution, etc... BUT, it's just not that likely in the current political climate.
But I don't know if I'd go as far as 9 swings. I think I'd still like 1 justice to argue simple political conservatism, and 1 to argue simple political liberalism. Both are valid schools of thought, and both still have a place in any argument. Unfortunately when you have four, on both sides, both views actually LOSE their voice, since you only have to argue to the one swing vote in the middle!
It's pretty sad how naive the founders apparently were when they established the Supreme Court as a non-partisan check to the Legislative and Executive branches. Sigh.
It was a nice thought though, wasn't it?
It was. We have a damn fine Constitution written by same damn smart people. Too bad "damn smart" is not a commonly-held trait in this country.
Well ya take a shot. There is NO system you can construct that is immune to corruption, incompetence or simply being used badly by unethical people. The justices are too political. Bush v Gore proved that beyond a shadow of a doubt. Is there anyone ANYWHERE niave enough to believe the 5 conservative justices wouldnt have voted in EXACTLY the opposite way if THAT was what it took to get George Bush in the White House? That by the way is a DIRECT violation of the oath they take to make decisions without regard to persons. Things go one way then another. I dont think the SC has been too good for a while. They WERE good in the sixties when their decisions finally gave us free speech, meaningfully not just on paper and expanded the freedoms of Americans. It will probably be unfettered by partisanship in the future. You are never going to get a perfect system if it is run by PEOPLE.
I was with you until you picked out exclusively conservative decisions as the wrong ones.
Actually I only picked out ONE and the point was partisan. I wasnt writing a research paper and that was the most blatantly partisan decision I could think of.
Bush vs. Gore stated that the decision shouldn't be used as precedent. If there was a sound basis for the ruling, then there shouldn't be any problem with using the same reasoning in the future. The only way it makes sense is if they knew they were making a purely political decision and they didn't want to justify the same sort of decision benefitting a Democrat at any point in the future.
Brab,
I do believe the Court rules this way fairly regurlarly.
Examples?
Can you find some other decisions by the Supreme Court that are "not to be cited as precedent?"
AA doesn't know that it's unconstitutional to make law for one person, in this case Bush 43.
Buchanan is just being partisan. What else is new? I think true judicial activism is rare. However the religious right adopted the term do describe any court decision that doesn't fit in with their world view (they couldn't care less about the Constitution) and now the right in general use it to try to claim some sort of moral superiority. I say poppy-cock! Being a strict construtionist or an originalist is no better or worse than being a living constitutionalist and neither is by definition an activist (or non-activist.) In fact neither is by definition liberal or conservative. Some of the living constitutionalists were appointed by Reagan.
Now, if you really want to see judicial activism -- or remind Buchanan and the rest just what judicial activism looks like -- take a peek at Alan Dershowitz's study Bush vs. Gore in Supreme Injustice: How the High Court Hijacked Election 2000. It chronicals the many was that the Supremes (nine nutty professors) reversed decades of pro-states' rights precedent, including a hands-off approach to national elections outside the Beltway, to crown King George in 2000. Talk about judicial activism! After that debacle, I don't see how conservatives could contend any nominee to the Court posed a threat of judicial activism. Scalia et al wrote the book on the subject!
I read the book..."Talk about judicial activism! After that debacle, I don't see how conservatives could contend any nominee to the Court posed a threat of judicial activism. Scalia et al wrote the book on the subject!
I agree!
I read Dershowitz book AND Bugliosi's book the Betrayal of America. Though Bugliosi is a moderate his book was much harder on the justices and I found it a better read.
My compliments to all on the quality of this discussion. Rock on, Solon!
Thank you. I appreciate that
Activist judges do just that, usurping the authority of the other two branches of government in an extra-Constitutional coup staged by the early Progressives and codified in Brennan's famous "Living Constitution." This MMFA article is absolutely Orwellian in its double-think mentallity. Next you'll find some Lefty who'll claim that war equals peace and slavery equals freedom and use that to criticize some Conservative for an invented deception.