Is There A Such Thing As A Conservative Activist Judge?

23 Responses to “Is There A Such Thing As A Conservative Activist Judge?”

1. TNVolunteer73 writes
   July 16th, 2009 9:25 am

   If they are an activist Judge,they cannot be conservitive on Judical Principles. Because the Conservitive view of the purpose of the judge is the constitutional duties of the judge. To see if the law does not violate the US Constitution, Nothing more nothing less.

   just an example

   For example the Right in the 2nd Amendment belongs to the PEOPLE not the State or Federal Government.

   “The right of the PEOPLE shall not be infringed”

   The possessive adjective in the 2nd amendemt is to the noun “Right” and the Right is possessed by THE PEOPLE.

   It says nothing about the right of the State shall not be infringed.

2. Emmy Lou writes
   July 16th, 2009 9:31 am

   TNVolunteer, you really ought to read the article. It explains why you’re wrong quite clearly and concisely.

3. DADvocate writes
   July 16th, 2009 9:40 am

   The article uses an over simplification of the definition of “activist judge,” i.e. overturning laws. There’s more to the concept of judicial activism but that’s not to say any judge, conserviative or liberal or something else, couldn’t be activist.

4. TNVolunteer73 writes
   July 16th, 2009 9:43 am

   What I am saying if a judge is activist, does not matter if they create law in favor of Conservitive values or liberal values, CANNOT BE A CONSERVITIVE.

5. Emmy Lou writes
   July 16th, 2009 9:45 am

   So this is all a fuss about common law? Interesting. I think y’all would miss it, if it were gone.

6. TNVolunteer73 writes
   July 16th, 2009 9:49 am

   Sorry hit the submit before I intended

   for example, Roe V Wade was ruled on the right to privacy. There is no right to privacy in the US Constitution.

   This is an Activist ruling.

   Now a judge ruled in a case that lets say, that allows the state to create a state church… based on the right of assembly… this would be an acitist decision, and oversteping the intent of the 1st amendment.

   Both would not be Conservitive, because they are activly creating new laws and rights that are not in the US Constitution.

7. TNVolunteer73 writes
   July 16th, 2009 9:53 am

   Common Law is nothing more than legal precidence,

   For example, I have a car.. You say that car belongs to you… It is up to you to prove the car is really yours, because power Possession is legal precedence. If you cannot prove the car belongs to you example bill of sale, registration etc… the judge will rule in my favor.

8. Emmy Lou writes
   July 16th, 2009 10:01 am

   I’m afraid you’re quite mistaken on that count, friend. If it were that simple we’d have no need of a court system. But perhaps that’s what you’re really after?

   You like hypotheticals, so let’s say you and I are boarding the Music City Star from opposite ends of the platform. I’m carrying a bag of fireworks. A porter on the train asks me for my bag of fireworks, I hand it over and step on the train. The porter is an idiot, and he decides to throw the bag of fireworks to another porter to stow it. Sadly, he misses his throw and the bag lands against the train and blows up.

   The explosion jolts the platform. One of the sign posts falls over because of the jolt, crushing one of your legs.

   Can you sue the porter and his employer?

9. autoegocrat writes
   July 16th, 2009 10:15 am

   TNVolunteer, all you’re doing here is changing the definition of judicial activism to specifically exclude conservative thought. It’s as if I said that no hippie could ever murder anyone, because if they murdered anyone, they are by definition not a hippie.

10. TNVolunteer73 writes
    July 16th, 2009 10:16 am

    Emmy lou

    Yes we do need a court.

    The court is to prevent the Congress to pass and the president to violate the US Constitution.

    They are the 3rd branch of our government. The Branch that INTERPRETS LAW. nothing more nothing less.

    The Congress WRITES LAW

    the president ENFORCES LAW.

    No one branch has total power.

    if the COURTS MAKE LAW.. they violate the constitution because the MAKING OF LAW is the power granted to congress, not the Judical Branch.

    The congress cannot make a law that violates the US Constitution….

    The Constitution does not change unless it is amended.

    If this is how the Legislative branch with the consent of the states overturn the USSC ruling is by Constitutonal Amendment or Constittuional Convention.

11. Emmy Lou writes
    July 16th, 2009 10:22 am

    So that’s a ‘yes,’ then; you’re objecting to the entire body of common law. It’s an…unusual choice, but regardless, not a position that hews to either side of the current American political spectrum.

    I don’t think you’re going to get much traction among judges by insisting that conservative judges refrain from making case law, but have at it, and good luck!

12. volvoice writes
    July 16th, 2009 10:27 am

    The fight to keep conservative judges at the head of our State courts is evident in the “Ramsey” plan, which, BTW, is obviously unconstitutional. Maybe it’s not so much activist conservative judges as it is activist conservative legislators who are financed by the organization “Tn. right to life”. Who, in turn, fills their campaign coffers with the $$. The Ken Hill appointment is a good example of the power exuded by the “right to life” organization.

13. GoldnI writes
    July 16th, 2009 10:33 am

    You like hypotheticals, so let’s say you and I are boarding the Music City Star from opposite ends of the platform. I’m carrying a bag of fireworks. A porter on the train asks me for my bag of fireworks, I hand it over and step on the train. The porter is an idiot, and he decides to throw the bag of fireworks to another porter to stow it. Sadly, he misses his throw and the bag lands against the train and blows up.

    Ugh. After first-year Torts, I was hoping to never have to deal with Palsgraf ever again! But good reference!

    And yes, putting everything that we consider “law” into statutory form is a very recent development. For most of legal history, judges simply looked to previous precedent and ruled based on that. That’s the common law, what Emmy Lou is referring to, and what most of our statutes are based off of. And you have to refer to the common law to determine how to rule when there is no statute directly dealing with a new issue coming before a court.

14. TNVolunteer73 writes
    July 16th, 2009 10:43 am

    Emmy lou..

    No I am not dissmissing anything about Common law.

    Common law is long time legal prescidence.

    For example of another common law is “Your home is your Castle”

    That “Common Law” has a constitutional Basis in the 3rd and 5th amendments.

    you have power over the use of your property

    Amendment III

    No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

    Amendment V

    …. nor shall private property be taken for public use, without just compensation.

15. MCO writes
    July 16th, 2009 10:56 am

    The problem is the definition of what constitutes judicial activism. The article defines it in terms of how frequently a court overturns legislation, but this is disingenuous, as it fails to account for whether the legislatures passing the laws being challenged are being constitutionally reckless. In other words, under the definition of activism used in the article, a court might be labelled activist only because it is frequently reviewing laws passed by a body that is not sufficiently bounded by constitutional restraints.

    When most people discuss activism, they are referring to the tendency of courts to take on a legislative role. Are conservatives sometimes guilty of judicial activism? Yes. In particular, Roy Moore, the Alabama State Supreme Court judge, comes to mind as someone who is guilty of that. However, to say that the Rehnquist court was activist in the way that the Warren court was simply skews definitions in a way that misleads.

16. Emmy Lou writes
    July 16th, 2009 10:59 am

    So TNVolunteer, how do you think the “long time” precedent came into being?

17. TNVolunteer73 writes
    July 16th, 2009 11:06 am

    “Emmy Lou writes
    July 16th, 2009 10:59 am
    So TNVolunteer, how do you think the “long time” precedent came into being?”

    Because it was legal precidence, written into law by Congress, and signed by the President and determined Constitutional by the USSC or was never legally Challenged before the court.

    Not by Activist Judges.

18. Emmy Lou writes
    July 16th, 2009 11:08 am

    Yes, the notoriously slippery definition of “judicial activism” is the entire point! For those of us who tire of pretending that “judicial activism” means anything other than “judges who issue opinions that displease conservatives,” any attempt to figure out what the phrase really means is welcome.

    “To take a legislative role,” for example, is so generic as to be (intentionally?) meaningless. What’s a “legislative role”?

    I really have no beef with conservatives who like judges to refuse to extend the protection of our laws to various individuals or groups. To maintain the status quo is the hallmark of conservatism. But let’s at least be honest about how “activist” that is! And on the flip side, let’s be honest about liking activism when we know it’s right, e.g., Brown.

19. Emmy Lou writes
    July 16th, 2009 11:13 am

    TNVolunteer, that’s the definition of a statute, aka statutory law. Not “precedent,” and not “common law.” See also http://en.wikipedia.org/wiki/Common_law.

20. Tom Paine writes
    July 16th, 2009 11:29 am

    Alas, we see the holes in the “strict constructionist” view of Constitutional law.

    The reality is that the federal courts are asked to decide disputes between two sides: a plaintiff and a defendant. In the course of ruling on which side is correct in their arguments, they ultimately set precedent and determine case law.

    Members of the Supreme Court generally don’t hear arguments with a design of being “activist” or overturning state or federal law. They simply decide which side’s argument is more in line with basic Constitutional principles. In the course of issuing those rulings, they define and sharpen what the Constitution is, in accordance with the design of the framers.

    As to the right to privacy, you don’t have to be a rocket scientist (or a Constitutional scholar) to see a direct line from the 4th Amendment to Roe v. Wade.

    Amendment 4 - Search and Seizure. Ratified 12/15/1791.

    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.

21. MCO writes
    July 16th, 2009 12:11 pm

    EmmyLou, you raise some valid points, and certainly there are occasions when the distinction between what constitutes activism in the sense of taking on a legislative role is blurry and likely dependent on one’s vantage point. Unfortunately, for us to streamline my argument and more carefully define terms would require a discussion that goes beyond comments on a blog post.

    However, if I may speak with a broad brush: what initially got conservatives agitated about judicial activism was a sense — I believe well-founded — that too much judicial reasoning seems like a conclusion in search of an argument. When such reasoning takes lawmaking out of the hands of democratic majorities and puts it in the hands of a small number of elites, it has the effect of delegitimizing respect for the law. It is that tendency that thoughtful conservatives oppose.

22. Emmy Lou writes
    July 16th, 2009 6:08 pm

    “When such reasoning takes lawmaking out of the hands of democratic majorities and puts it in the hands of a small number of elites, it has the effect of delegitimizing respect for the law.”

    It may have that effect, to be sure, but by the same token it is the job of the judiciary to ensure that the legislative process works: to strike down laws that serve no legitimate purpose (see Lawrence) and to protect the rights of the minority from the tyranny of the majority.

    So again, this doesn’t seem like an argument that cuts down partisan lines. What, exactly, are the issues that have been “taken out of the hands of democratic majorities”? And are judges themselves these “elites” that you refer to? Are they in any way particularly MORE “elite” than lawmakers?

23. Nodak Brian writes
    July 17th, 2009 11:35 pm

    My definition of a Conservative Activist Judge is a judge that interprets the Constitution how they would have written it. But since they weren’t involved in writing the Constitution (since they weren’t even born yet!), they should stick with basing their rulings on what is actually there, even if it is an “affront” to their “values”. For a political movement that often claims to have a monopoly of the “values” of our Founding Fathers, they sure don’t have a problem putting those “values” on the shelf when they don’t jive with what they want to promote.