Judicial Activism

[Tony]

http://www.foxnews.com/story/0,2933,97117,00.html ..full article

WASHINGTON — Justices have started to cite foreign sources to justify the way they rule at home, oftentimes looking toward liberal courts no matter how preposterous the connection to the cases being heard at home, said retired Judge Robert Bork

Bork, whose third book, Coercing Virtue: The Worldwide View of Judges, was released this week, said judicial activism has been growing and evolving in the United States since the 1960s, and is, in fact, going global.

A lot of good things could be done with judical activism, but I am against it because the potential for abuse is to great.

 

[Blue Monk]

It violates the separation of powers this country was founded upon.

If you want to be an activist, run for Congress.

Judges should do their job and rule on existing law, period.

 

[arcticpenguin]

Of course when the legislative and executive branches shirk their responsibilities by passing patently unconstitutional legislation, they force the judicial branch to clean up after them.

And Bork is just as activist as the others. He just slants it in a different direction.

 

[Tony]

It violates the separation of powers this country was founded upon.

If you want to be an activist, run for Congress.

Judges should do their job and rule on existing law, period.

I agree with you, but let me run this by you to see what you think.

We all know the courts are supposed to "interpret" the constitution. What if the courts "re-interpreted" the meaning of the separation of powers? What is to stop them from doing that?

 

[arcticpenguin]

I agree with you, but let me run this by you to see what you think.

We all know the courts are supposed to "interpret" the constitution. What if the courts "re-interpreted" the meaning of the separation of powers? What is to stop them from doing that?

I see what you mean; like if the supreme court tried to appoint a president, or some such?

 

[Tony]

You're obviously not interested in serious discussion.

 

[arcticpenguin]

You're obviously not interested in serious discussion.

Right you are, I am interested in being the first poster to reach 8000 posts.

 

[Michael Redman]

Judges should do their job and rule on existing law, period.

Existing law never directly addresses the facts in front of the judges. If it did, we wouldn't need judges. When no good controlling precedent exits, judges have to seek out other sources of considered opinion on the matter. Sometimes decisions in other US jurisdictions, and sometimes even decisions in foreign jurisdictions, or non-judicial treatment of the issue in, for example, scholarly papers. This certainly isn't new. Judges have been citing foreign precedent and legal treatises since the founding of our nation.

 

[Suddenly]

I agree with you, but let me run this by you to see what you think.

We all know the courts are supposed to "interpret" the constitution. What if the courts "re-interpreted" the meaning of the separation of powers? What is to stop them from doing that?

Somebody has to have the final say. If it were congress we would ask "What is stopping them from passing a law declaring the seperation of powers void?" Or even "What keeps the President from declaring himself "President for Life?"

Somebody has to have the last say as to what the constitution means, and there are several reasons why the courts are a good choice,

1) They have no innate powers. Congress controlls the purse, the President controlls the enforcement apparatus. The court can be ignored. Wasn't it Andrew Jackson that said: "Justice Marshall has made his decision, now let him enforce it" or something like that? It is political reality that the courts cannot seize power, as they really can't force other branches to act.

2) The courts are limited to speaking only in "cases or controversies." They can't issue proclamations. For a court to speak to a point of law there must be a case to decide. They can't get up in the morning and say "Today, how 'bout we ◊◊◊◊ with the establishment clause." They have to wait for an actual case to come to them.

3) W/r/t the constitution, all the court does is identify and rectify conflict between the Constitution and lesser forms of law. When the two conflict, the Constitution takes precidence.

4) From 2 and 3 above we see that the Court can't originate something along the lines of "re-interpreting the seperation of powers," as all they could do is fail to object to Congress passing a law (or the President issuing on order) that conflicts with the seperation of powers doctrine.

In other words, the Court really can't start a problem. All they can do is not act to stop it.

 

[whitefork]

It'd be interesting if the Supreme Court decided that Marbury v. Madison was unconstitutional. I guess that's what would have to happen to put judicial activism to rest for good.

 

[Michael Redman]

It'd be interesting if the Supreme Court decided that Marbury v. Madison was unconstitutional. I guess that's what would have to happen to put judicial activism to rest for good.

That wouldn't do it. As long as we have common law, we have what is referred to as "judicial activism", which in a common law system is what is also referred to as "judges doing their jobs". That is, judges using precedent to determine how to apply the law to the facts presented to them. If you don't like "judicial activism", try a civil code system.

Of course, if your definition of judicial activism is "rulings with which I don't agree" (common among certain types these days), your only hope of preventing it is stacking the court, or removing the independence of the judicial branch.