Smug Bastard Cabal

On a Lighter Note...

The 25-year old Florida teacher accused of having sex with one of her male students was sentanced to 3 years house arrest and 7 years probation. I've managed to find a picture of the culprit here. Now, there's one question that crosses my mind: What the HELL was she thinking?!?!. I mean she's gorgeous. What the hell is she wasting her time with an awkward 15 year-old? If she were walk up to three men at random and ask for sex, she'd get four offers in the affirmative. The funniest line in the entire story, though, comes from the victim's mother:

"If we had continued along this path, this would have followed him forever," said the mother, whose name was being withheld to protect her son's identity. "My prayer is that he can leave this behind him and go on and be a happy, healthy young man."

Lady, I can guartantee to you that if your son had anything to say about it, this (and her) would follow him forever. That's where the happy part comes from.

Okay, Fran, I Wanted to Avoid the Fisking Style...

But, since you doubt I've read your earlier argument, I'll have to address this one point by point:

I believe I wrote “I do not advocate legislating from the bench or pulling law out of thin air.” I also said that if a strong case could be made based on the Constitution, judicial precedent, and case law for overturning a law, the Court should err on the side of human rights and liberty. If a strong constitutional case can not be made, they should ALLOW THE LAW TO STAND.

We disagree here. I don't think its the role of the Court to err on any particular side. "A strong case can be made..." isn't really a sufficient standard for me. As I alluded, any position can have a strong case made for it. Hell, give me a law school education and enough time, and I'll figure out how to make a strong case that the Constitution demands that I be worshipped as a god-king. I believe that the court should focus its efforts as clearly to the actual text and intent of the Constitution as possible. To the extent that such text and intent is unclear, only then should case law be consulted.

Furthermore, I said that the Constitution was a simple document, but the interpretation, case law, and judicial precedence surrounding it are not. In cases which strong constitutional arguments could be made for either side, it may be natural to see the decision tinted by the political and ethical philosophies of the individual justices. That’s a far cry from saying that justices should base their decisions on their own personal politics.
I would also insist that justices adhere to the Constitution, case law and precedents. For instance, Antonia (sic) Scalia may not like eminent domain, but if he chooses to overturn a local law, he better make a strong constitutional case for doing it (I think he did). I reiterate, I DID NOT say that justices should pull law out of thin air to satisfy their politics.
This political element in Court’s decision making has always been there. Why do you think Supreme Court nominations are so contentious?

First of all, I didn't accuse you of saying that justices should pull law out of thin air to satisfy their politics. I pointed out the obvious danger of judges allowing their personal politics to influence their judicial decisions. I do believe its possible for a judge to make a decision purely on the merits of constitutional scholarship. Not can a good case be made, but is this the best case. Significantly, judicial appointments weren't always so contentious. Supreme Court nominees only began to appear before the Senate in the early-to-mid 20th century, roughly around the time that judges decided it was okay to replace the standard of closest to Constitutional scholarship with "a good case can be made".

That is why I referred to Brown v Board of Education and Plessy v Ferguson. Politics and morality clearly were the main determinate in both cases.

In case you haven't noticed, the imaginary exchange you have between us re Brown belies this argument.

Although the justices in 1896 were learned, most of them probably accepted the notion of white supremacy. Furthermore, given that the nation was still healing from the wounds of the Civil War, the Court may have been concerned that deciding in favor of Plessy might fracture the country. Thus they created the precedent of “separate but equal.” .

Has the possibility occurred to you that maybe, just maybe, the court at the time looked at the Constitution and simply couldn't find anything to indicate that separate couldn't be equal. We don't take that position today, of course, but that really has little to do with views on racial equality. Since that time, I assume you are aware, there has been sociological and psychological research indicating this. But the data feeding Constitutional decision changing is different from the structure of that decision-making changing.

By 1954, the justices of Supreme Court viewed white supremacy as an outdated relic from an unenlightened time. Therefore, they overturned Plessy stating that, “separate but equal was inherently unequal,” and a violation of the 14th amendment. Strong constitutional arguments were made on both sides and neither Court pulled law out of the air, even though the final decisions ultimately came down to political and ethical beliefs.

Again, see my earlier point. There was extensive research contraindicating the decision in Plessy. Again, the underlying data on which to make a decision had changed.

Regarding politics on the Court, you mentioned, “But you had best pray to your personal god that you never loose hold of the reins of power.” I believe that there are checks and balances built into the system which prevent some of the undesirable outcomes which you fear. For one thing, Supreme Court vacancies come up sporadically in the Administrations of Presidents with different politics. One President’s politics will be balanced out by another’s. In addition, the President’s choice must be confirmed by the Senate. If the candidate’s philosophy is too extreme or if the candidate is deemed too partisan or activist, the Senate will probably reject him. This could be true even if the President’s party controlled the Senate, since the minority party could use the filibuster.

This is small compensation to large swaths of the country that feels the Court has fundamentally moved against their views over the last 30 years, or those on the Left who are screaming now about the possibility of a conservative activist Court. But that's beside the point. A broad social consensus for any particular outlook is likely, when the Court allows itself to become results-driven, to result in a Court biased in a particular direction for decades into the future. But it is precisely against that broad social consensus that the Constitution most strictly demands to be followed most rigorously.

Take the current situation as an example. Let’s say Bush nominated John Ashcroft for the Supreme Court, a likely social conservative activist. The Democrats could use the filibuster, but it probably would not even be necessary. The usual suspects of Spector, Collins, Snow, Hegel, Chafe, Warner, and McCain would probably join the Democrats to defeat Ashcroft.

Now ask yourself a question, would Ashcroft's defeat more likely result from extremism & partisanship or the fact that he looks/sounds/acts...well...goofy? Lets say you had "John Ashcroft v2.0" with the same views, outlooks, etc. as Ashcroft, only erudite, handsome, well-connected, etc. Would his defeat be as likely?

Furthermore, Supreme Court justices have their jobs for life. Sure, this doesn’t prevent politics or personal convictions from occasionally coloring their decisions. But, it does insulate them from the petty politics of the day (like worrying about the chilllllldrennnnnn).

And, what if, as has been bandied about, the person on the Court was someone like Hilary Clinton, one of the primary advocates of worrying about the chilllllldrennnnnn.

I was not advocating judicial activism or the judiciary as politics by other means. My entire point was that conservatives are hypocritical when they criticize judges for overturning conservative laws, but are silent or supportive when judges strike down liberal laws. Furthermore I was saying that many of the decisions that conservatives criticize are actually NOT examples of judicial activism. Conservatives just call them activist to discredit them.

Yes, and much of my response was based on showing where activist methodologies are present in the cases you're defending and your charges of activism in the conservative decisions is overstated.

Part of the reason for my writing this essay was an awakening that I had regarding this issue. Being on the right hand side of the political spectrum for so many years, I casually accepted the conservative party line on judicial issues.
Social conservatives have managed to convince libertarian conservatives that liberal and moderate judges are all just a bunch of activists who make up law and legislate from the bench. Conservatives, however, are strict constructionists who believe in judicial restraint.

By and large, they're not far off. Put bluntly, a liberal jurist is significantly less constrained in pushing an agenda than is a conserivative jurist. The conservative, at least, is partially constrained by ideology. Much of my earlier post indicated some of these principles. Does that mean conservatives are never activists? No. But do you really want to run a neutral activism quotient against two such jurists? I'm pretty sure the conservative will come out with a cleaner record.

Even if you are a libertarian or a moderate republican, they claim, you should accept the social conservative position in order to stop these unholy activists because they threaten the balance of power system and democracy. We can’t, after all, have nine unelected men and women in robes making our laws for us.

A principle stands on its merits. What about this argument have you now decided is wrong?

Like most moderate and libertarian republicans, I sheepishly accepted this. I accepted that cases like Lawrence v Texas and Adkins v Virginia were clear cut cases of judicial activism.

Fran, please explain to me how overturning the Court's earlier decision in Bowers v. Hardwick under the aegis of evolving standards (doesn't the very notion of community standards suggest the law might be better left with the elected branches?) is something other than activism. Bear in mind Bowers was, in fact cited afterGriswold or Roe.

That is until I actually started to think for myself, instead of allowing social conservatives do it for me.

Thank you, oh enlightened one for informing us poor benighted souls under the grip of the all-powerful Karl Rove space-based mind-control laser beams.

I realized that both liberals and conservatives use constitutional reasoning to overturn laws. As I’ve outlined, there are many cases where conservative justices have overturned or tried to overturn liberal laws.

I think we have a very different view of what defines activism. Overturning a case doesn't mean activism in my book. Ruling for results, pushing the envelope in constitutional theory, or going against precedent and established principles does. Again, conservatives' failings on this point do not invalidate the principle nor render the judicial left's reinterpretations less common.

I came to realize that social conservatives are extremely hypocritical in the application of their so called philosophy. The real judicial conservative philosophy can be summed up as follows: When a conservative law is overturned by the Supreme Court it is always a case of judicial activism, regardless of how strong the constitutional case. When a liberal law is struck down, it is always proper, regardless of how weak the constitutional case.

Hmm...you've caught on to Thomas's evil plan to rule the world. I'll have to let him know.

I also realized that some of those infamously “activist” decisions like Lawrence, Adkins, and Roper were not really activist. In each case, the Court carefully considered the Constitutional issues at stake and made it’s ruling. I outlined these considerations in my essay.

Yes, and I outlined both in my previous response and here, why I disagree with you.

I know it may be annoying to the social conservatives but we do have a 1st, 8th, 9th, and 14th amendment and the Court has a right to consider these things.

Actually, its not the ammendments themselves, nor the Court's consideration of them, but the extremely aggressive posture that the court has taken in its interpretation of these ammendments. Just to cite the First Ammendment alone, there is a more-than-reasonable case that the Court has downplayed the free exercise clause in favor of establishment clause. While it could be just happenstance, at some point reasonable people conclude its moving in an agenda-driven direction.

Oh, and by the way, Anthony Kennedy only made a reference to international conventions in his opinion on the Roper juvenile death penalty case. It was NOT the basis of his opinion, as the blowhards would have us believe.

Then why did Kennedy feel the need to cite foreign law in both Roper and Lawrence?

I believe I need to state my case once more for Lawrence v Texas. I was not defending an “activist” decision. Instead, I was making the point that the Court’s decision was NOT activist since a very strong constitutional case can be made for overturning the Texas law. Conservatives are discrediting it as “activist” merely because it overturns a socially conservative law.
I am sorry, but the more I think about it the stronger this case becomes. The 1st amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Sodomy laws have their basis in religious morality. The state can not force a religion on its people.

Fran, that is precisely the sort of reasoning that I have no problem calling activist. The laws in question didn't cite religion. They simply identified a behavior as unpermisable. If the state decides that its illegal to walk around in a clown nose on Thursdays, I challenge you to cite where it violates the Constitution. It may be an incredibly stupid law. But its not unconstitutional. The only one who has brought religion into this is you.

Secondly, if you look at judicial precedents over the last forty years, the Court has increasingly recognized a right to privacy emanating from the 9th amendment and 14th amendment. See Griswold v Connecticut and Roe v Wade. You may not like this judicial precedent but its there (actually I believe you secretly do but your reasoning is being clouded by blowhards).

Actually, most of the blowhards you reference have stipulated that, to the extent that precednt has been established, it should be respected. I largely agree with them. The debate largely rests on how far an implied right should be extended. If you're willing to extend this right ad infinitum, there's precious little one can do when others choose to recognize implications in other areas of the constitution. Gah - Pat Robertson gets the Court to read an implication of protection from criticism for religious institutions.

If you scan the bill of rights, especially the 3rd (banning forced quartering) and the 4th (banning illegal searches and seizures) it is clear that the founding fathers were concerned about protecting individuals from unreasonable intrusions by the government into their lives.

Except, of course, that comparable laws were on the books at the time and the framers had no problems with them.

Furthermore, it could be strongly argued that the law violates the equal protection clause of the 14th Amendment because it only targets homosexuals and not heterosexuals who engage in the same activity.

Admittedly a legitimate criticism of the law.

Now explain to me again why this is activism.

I did.

I have outlined a very strong case based on Constitutional amendments and judicial precedent. I am not pulling anything out of the air.

Well, except for that stuff about religion, implied rights, and the bill of rights

, and Six out of nine justices voted to strike it down. Oh, but I forgot, it defends the rights of “sickies” and social conservatives hate “sickies”. So of course it must be activism!!

No. Its activism because it overturns established precedent to extend an implied right based on the Court's estimation of appropriate standards.

Are you getting my point? You’re a pretty libertarian guy. I know you dislike social conservatives and their legislative agenda almost as much as I do. Please do not let them do your thinking for you on this issue.

Oops, got to adjust my tinfoil hat to protect me from the Karl Rove Space-based mind-control laser beams....There that's better. What were you saying again?

Bill, doesn’t it bother you that Anthony Kennedy, the Court’s only libertarian conservative, frequently gets some of the harshest criticism from social conservatives. ?

Umm...yes it does. Why can't he trust the democratic process to produce legitimate results?

Why? Because, he interprets the Constitution to the detriment of their laws.

Which he should only do if said laws violate the constitution. He hasn't convinced me that they do.

If he were striking down an anti-cigarette law (a favorite of liberals), they would not have a problem with him.

Well, there I just might make an exception. Heh. No, actually it would depend on the law. One banning smoking would be very, very, hard to justify in light of Roe (an individual's right to control their own body). But this is hardly and extension of precedent. One banning interstate distribution would be equally hard to strike down.

Social Conservatives are not the only ones who have used the “A” word to disparage any Court decisions that they did not agree with.During the Civil Rights movement, the Court routinely overruled racist Southern laws. White racists used the “Activist” argument to try to convince intelligent, thoughtful people that the Court was dangerous and out of control.

Yup. And Hitler breathed air. So we should equally dismiss all those damn air-breathers as Neo-Nazis. Of course, to follow through on your argument, extend it to Congressional positions on the 1964 Civil Rights Act. Barry Goldwater, who opposed it on constitutionalist grounds must have just been the dupe of Bull Connor. Right? Of course, if you're going to go that far, I'm sure you'll also take credit for that triumph of court-imposed social policy school busing. Right?

Referring again to Brown v the Board of Education, I could see two people just like us having the same conversation. It would probably go something like this:
Bill: While I agree that the Topeka Board of Education are a bunch of stupid, racist, redneck cretins, I have a serious problem with the Court legislating from the bench. Supreme Court judges must show restraint. They can’t just nonchalantly throw out a 58 year old precedent.
Fran: I accept your argument that judges shouldn’t legislate from the bench, but they do have a right to uphold the Constitution. The 14th amendment guarantees equal protection. The Court has provided sound reasoning that “separate but equal is inherently unequal.” You may disagree with the Court’s reasoning but you shouldn’t call them activist.
Although no one would dare to suggest that Brown was activist today, you know that many thoughtful, non racists did at the time.

Actually, I have and do (although the developments in psychology and sociology made it decidedly less so than it appeared at first glance). I've never argued that I disagree with the activists' goals. I've also never argued that good principles can't have terrible consequences. But, isn't that the cost of a nation of laws rather than men.

I believe there is a good chance that people like you and me would have been conned by the white racist “Activist” argument if we had lived during the time. Let’s not be conned by the social conservative argument today.

Yeah, no need to let silly little things like consent of the governed or constitutional tradition get in the way when we know what's best for the little people.

You wrote a beautiful essay about the dangers of judicial activism. I agreed with most of it, but I am sorry to tell you that your social conservative friends really do not care.

Why should this matter. If constitutional tradition is a valid approach it stands on its own. Think about it this way. Imagine you were going for a walk. Charles Manson walks up to you and says "Hey, Fran. You know, genocide is a really, really bad thing. Would the fact that genocide was condemned by Charles Manson legitimize it? I don't think so.

The whole “Judicial Activism” argument is just a way for them to dupe moderate and libertarians like us into supporting their causes. Social conservatives do not hold their judges to same standards.

Yes, but we should.
Update 11:25 PM I've given some additional thought on the Lawrence decision, and have to say that I don't think the Equal Protection clause would apply. Specifically, the Texas law prohibited actions, not status. Specifically, a gay man was legally allowed to perform cunnilingus on a woman, a lesbian had legal sanction to perform fellatio, and a gay man or woman had no prohibitions against anal sex with a member of the opposite sex. Similarly, heterosexual men and women were also forbidden same-sex sodomy. On strictly constitutional grounds, there's little reason to say it didn't fall on everyone equally.

As one of those blowhard conservatives....

I feel its incumbent upon me to offer up a counterpoint to Fran's comments. I'll be the first to agree that the causes Fran champions in his comments are very much worthwhile. If I were to buy in to a couple of the premises he buys into, I'd have little problem with his argument. These premises are:
1. The rightful role of the judiciary is politics by other means. This is an extremely dangerous position. The Court is granted advantages virtually no other participant in our government is afforded: lifetime tenure and authority to override laws. When the Court takes a modest interpretation of its mandate, these conditions are a blessing. They insulate the Court from political pressures that can work against the Constitution for which the Court speaks. However, when the court arrogates to itself the role of "superlegislator", advancing an agenda, even a good one, it works against democracy. Now, reasonable people may conclude, "So what? I approve of the positions they're taking." But you had best pray to your personal god that you never loose hold of the reins of power. While you or I may be more than happy to see the Court push for greater liberty, other people may be more interested in seeing it push for other goods: equality, divine sanction, or even "for the chilllllldrennnnnn....". Once Pandora's Box is opened, and the court becomes an active participant in the system, rather than a neutral arbiter acting on behalf of the Constitution, you really don't have much to complain about once they start using the court in that way, even undermining the protections of liberty that are objectively spelled out in the document.
2. Its not possible for a justice to separate policy preferences from their decisions. Everyone has biases. So, its asking a lot to expect people to overcome them. But someone on the Supreme Court's primary bias should be in favor of the Constitution. As such, its not particularly difficult for me to imagine a bigot and someone who supports racial equality siding contrary to their personal views in Brown. Likewise, it doesn't seem essential that one supports government intrusion into people's sex lives to think that overturning case law might not be the best way to get the government out of people's bedrooms. The crucial question is what is in the Constitution, not what do you think the law should be. Its precisely in this context that the activist charge takes shape. In her majority opinion in the Michigan affirmative action case, O'Connor addressed the necessity of affirmative action in greater depth than its constitutionality. The decision was scant in addressing the specific constitutional charge - that differing standards for two classes of citizens violates the Equal Protection clause.
3. Justices can rightly exercise wide latitude in interpreting the Constitution. A good lawyer can make a case for pretty much anything, and there's very little we can do about their decisions. The question is are they the right decisions We can evaluate these decisions by considering the proximity of their reasoning to the constitution. I think its fair to conclude that a justice arguing for the decision based on the results of siding one way or the other, they are arguing for usurping the authority more appropriately left with the the branches answerable to the electorate. If you have to seek out "emanations and penumbras" in the Constitution to justify your decision, there's a better than even chance you're pulling shit your ass. If, as was the case in the juvenile death penalty decision, you're citing foreign law to establish standard (juvenile death penalty consistently got very widespread support in the U.S.) critics are hardly out of line calling you an activist. Any of these things is a long, long way from the notion that the "public use" clause in the Fifth Ammendment (...nor shall private property be taken for public use, without just compensation.) doesn't equate public use with public benefit.
I can't agree more with Fran that the Constitution provides the bill of rights and other amendments as a limit on the power of government to threaten its citizens. In fact, I'll go so far as to say that I'm sympathetic with many of the goals of these activists. But, when you turn the judiciary from the defenders of that constitutional system to a tool to advance an agenda, even a legitimate one, you undermine the constitution's ability to do that.