News Souter Confirms Republicans' Worst Fears

[russ_watters]

This is disturbing.

It has long been a conservative fear/criticism that liberal justices are "legislating from the bench" in what is often termed "judicial activism": in essence, writing the law instead of interpreting it. In a speech to this year's graduating class of Harvard, Souter acknowledged in shockingly explicit terms that this was, in fact, how he viewed his duty as a (now retired) USSC justice:

We will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties. A good many of us, I’m sure a good many of us here, intuitively react that this sort of commentary tends to miss the mark. But we don’t often pause to consider in any detail the conceptions of the Constitution and of constitutional judging that underlie the critical rhetoric, or to compare them with the notions that lie behind our own intuitive responses...

But this explanation hardly scratches the surface. The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time...

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it...But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality...

The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

http://news.harvard.edu/gazette/sto...ce-david-souters-speech/?loc=interstitialskip

Not only is this an acknowlegement that he, as a matter of policy throughout his career, violated his oath, but it is an argument that this is the way it should be and a campaign for Obama to appoint a replacement for him who follows in his footsteps - and for the graduates of Harvard Law to do the same.

Souter gives two examples, one being Plessy vs. Ferguson vs Brown vs Board of Education (the "separate but equal" cases):

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.

Here he's applying his own incorrect standard in order to prove his case, in essence assuming the outcome instead of arguing it. The second sentence requires a logical argument to support it: [in response] Why not? The answer, presumably, is that the judges of 1896 were racist and therefore used their own values to judge the issue - the same mistake Souter is saying he based his life's work on and should continue. But a faithful reading of the Constitution reveals that the flaw in the morality of the men of 1896, which certainly also existed in 1787, does not appear in the Constitution. The constitution guarantees equal protection under the law -a protection that was superflouously reiterated with the 14th Amemndment. So "separate but equal" was against the Constitution in 1896 and the court erred. It is shocking for him to argue that the court was correct in both 1896 and in 1954.

Further, one of the racist justices is 1896 recognized his own duty and looked past his own racism in crafting a dissenting opinion:

Justice John Marshall Harlan ("the Elder") was a man who passionately believed that the "white race" was superior to all others. Yet, as Justice Clarence Thomas likes to point out, Harlan looked into the Constitution and could not find there, in its words as fairly construed, any basis for separate but equal. The Constitution, Harlan wrote, says the government must guarantee the equal protection of the laws to all. That is what it said, and that is what it meant. Harlan was, of course, vindicated in 1954, when the Supreme Court overruled Plessy and rejected the notion of "separate but equal" in Brown v. Board of Education.

The bottom line is that bad constitutional decisions, far from being the result of the Constitution's frailty, are caused by the frailties of judges who depart from it.

http://www.usatoday.com/news/opinion/forum/2010-06-16-column16_ST_N.htm

And, of course, if a flaw exists in the Constitution, a process already exists and has proven successful for fixing those flaws. Though equal protection itself wasn't one of those flaws, slavery introduced others, such as the 3/5ths compromise.

The above quote was paraphrased from an op-ed about the Souter speech, which also says:

It would be difficult to articulate a decision-making model more antithetical to American democracy and the Constitution's own design. It is often said — by the Supreme Court among others — that we have a "government of laws and not of men." Judges are people, not the living embodiment of the law. When a judge makes the choices Souter suggests, without regard to the Constitution's words and their original meaning, it is the judges who rule and not the law.

I couldn't agree more. Souter's model would have full national sovereignty residing in the hands of a panel of 9 lifetime-appointed rulers. His vision is not democracy and it is not what this country is about.

[edit] Also, though not typically considered the "swing vote" because despite being appointed by/as a conservative he became fairly heavily grounded in liberalism, with the knowledge of the above, he should be considered in that light. And since many of his decisions were apparently based on an improper view of his mandate, a great many of the decisions of the court over the past 20 years must now be called into question.

 

[Hurkyl]

It has long been a conservative fear/criticism that liberal justices are "legislating from the bench" in what is often termed "judicial activism": in essence, writing the law instead of interpreting it. In a speech to this year's graduating class of Harvard, Souter acknowledged in shockingly explicit terms that this was, in fact, how he viewed his duty as a (now retired) USSC justice:

Either I fail at reading comprehension, or the quote that follows is a far cry from an acknowledgment in "shocking explicit terms" that Souter legislated from the bench.

 

[mheslep]

These two excerpts:

[...]constitutional judging is not a mere combination of fair reading and simple facts

and

[...]The court has to decide which of our approved desires has the better claim

strike me as tantamount admission of bench legislation, especially the second. If 'approved desires' means conflicts in the constitution, such as the 3/5 rule and equal protection, then he's off the hook. But I believe by 'desires' he means otherwise: legislation, societal norms.

And this

[constitutional judging] extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time...

is a tendentious rationalization, ignoring the amendment process, allowing the judge to play hero, riding to the rescue of general language in need of his interpretation.

 

[turbo]

Great! Another neo-con thread that will be tolerated on PF with insufficient parsing or moderation. Souter is not an idiot. He realizes that the Constitution has to be interpreted in light of the present time. That is not a revolutionary idea.

The present-day's neo-con faction on the court has extended the natural rights of citizens to corporations, enabling them to pour billions of dollars into our elections and buy our government even more effectively than they have done in the past. Is that not "legislating from the bench", or is that perjorative label only applied to justices that value the rights of individuals?

 

[russ_watters]

Either I fail at reading comprehension, or the quote that follows is a far cry from an acknowledgment in "shocking explicit terms" that Souter legislated from the bench.

He gives the two models and then says which he uses and provides a long argument in favor of it. The traditional model is the self-explanatory "fair reading model", which he is clearly arguing against. What he's arguing for doesn't really have a name that he identifies, but he alludes to it with "criticism that the court is making up the law" and I gave the common descriptions such as "legislating from the bench" and "judicial activism". The fact that he doesn't apply a label to it shouldn't make it any less clear which model he is arguing for and which he is arguing against.

The last two sentences I quoted are probably the most explicit where he is arguing that the "fair reading model" doesn't work and he does (and the court should do) something different.

 

[russ_watters]

If 'approved desires' means conflicts in the constitution, such as the 3/5 rule and equal protection, then he's off the hook. But I believe by 'desires' he means otherwise: legislation, societal norms.

Since he uses separate but equal as his example, clearly he does mean societal norms (and personal opinions of judges), but I wouldn't let him off the hook even with those two clearly contradictory parts of the Constitution. When the Court finds a law that appears to contradict the Constitution but isn't crystal clear, it doesn't just strike the law down and wash its hands: it sends the law back to the legislature for clarification/rewriting, with an explicit explanation of where the contradiction or ambiguity lies and often even instructions for how to rectify the problem. The Court's responsibility when it comes to a contradiction/ambiguity in the Constitution itself is no different.

 

[Hurkyl]

He gives the two models and then says which he uses and provides a long argument in favor of it. The traditional model is the self-explanatory "fair reading model", which he is clearly arguing against. What he's arguing for doesn't really have a name that he identifies, but he alludes to it with "criticism that the court is making up the law" and I gave the common descriptions such as "legislating from the bench" and "judicial activism". The fact that he doesn't apply a label to it shouldn't make it any less clear which model he is arguing for and which he is arguing against.

The last two sentences I quoted are probably the most explicit where he is arguing that the "fair reading model" doesn't work and he does (and the court should do) something different.

You're misreading him, I believe. His thesis is that "criticism that the court is making up the law" is a misinterpretation of reality. He believes such criticism is based on an oversimplified view that judging is little more than an exercise in unambiguous, consistent, deductive logic.

This oversimplified view is what he labels as the "fair reading model".

 

[russ_watters]

Souter is not an idiot.

I never said he was.

He realizes that the Constitution has to be interpreted in light of the present time. That is not a revolutionary idea.

Then you should have no trouble referencing your claim or providing a logical argument for it.

The present-day's neo-con faction on the court has extended the natural rights of citizens to corporations, enabling them to pour billions of dollars into our elections and buy our government even more effectively than they have done in the past. Is that not "legislating from the bench", or is that perjorative label only applied to justices that value the rights of individuals?

Legislating from the bench certainly does happen on both sides of the aisle, it just happens more from the left. That's why liberals argue in favor of it and conservatives argue against it.

 

[russ_watters]

You're misreading him, I believe. His thesis is that "criticism that the court is making up the law" is a misinterpretation of reality. He believes such criticism is based on an oversimplified view that judging is little more than an exercise in unambiguous and consistent deductive logic.

This oversimplified view is what he labels as the "fair reading model".

I'm not seeing a disagreement between you and me here. That he believes the "fair reading model" to be an oversimplified view of the duties of a judge is exactly what the issue is.

Critics call it "legislating from the bench". He calls it part of his duties. Whever you label it, it is happening and he is acknowleging that he's doing it.

 

[Hurkyl]

I'm not seeing a disagreement between you and me here. That he believes the "fair reading model" to be an oversimplified view of the duties of a judge is exactly what the issue is.

Just to clarify, you are making all of the following assertions?

• There are no ambiguities in the law
• The letter of the law overrules the spirit of the law
• There are no conflicts between laws

 

[russ_watters]

I'm going to research further and come up with more info about the subject, but please all note: I'm not the originator of this issue and I'm not making things up here. My interpretation comes primarily from the USA Today op-ed I linked in the OP. The writers are former (Republican) justice department lawyers.

 

[russ_watters]

Just to clarify, you are making all of the following assertions?

• There are no ambiguities in the law
• The letter of the law overrules the spirit of the law
• There are no conflicts between laws

I am most certainly not making any of those assertions!

 

[Hurkyl]

I am most certainly not making any of those assertions!

Those three assertions -- or even just invoking a single one -- are what I think he means by the "fair reading model".

At the moment, I'm not particularly inclined to argue whether or not I'm right on that point. But can we agree that, if I do happen to be right, the speech is not disturbing?

 

[TheStatutoryApe]

"Judicial Activism" has been going on for a couple centuries now. It happens more or less in different eras and under different courts. It is part of the job of the Supreme Court to "make" law. We get it from the british legal system and is generally referred to as "case law".

If you do not like judicial activism perhaps you would be willing to give up those rights you have received due to it? Do you really need any of the Bill of Rights to protect you from the actions of your state? Should states be able to make abortion illegal? Do you value your "right" to privacy? Do you really care much if the police require probable cause to search your home or arrest you? Do you mind officers stopping you for no reason or do you think that they should at least require a reasonable suspicion that you have committed a crime in order to do so?

 

[Cyrus]

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular acts proceeding from the legislative body.

The Federalist, No. 78.

 

[BobG]

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it...But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality...

Just to clarify, you are making all of the following assertions?

• There are no ambiguities in the law
• The letter of the law overrules the spirit of the law
• There are no conflicts between laws

"Judicial Activism" has been going on for a couple centuries now. It happens more or less in different eras and under different courts. It is part of the job of the Supreme Court to "make" law. We get it from the british legal system and is generally referred to as "case law".

I think Hurkyl and TSA hit on what Souter was alluding to. The overwhelming majority of cases that make it to the US Supreme Court make it there because the Constitution isn't robust enough to give clear guidance to every possible situation that could arise.

Some of the cases the US Supreme Court sees can be resolved by simply reading the Constitution and/or whatever legislation is involved.

Most require some ambiguity, conflict, etc to ever make it to the US Supreme Court.

For example, "prohibits the federal government from depriving any person of life, liberty, or property, without due process of law" sounds pretty straight forward until you have to sit down and decide what a person is and decide whether taking a 10% risk of being deprived is the same as a 100% chance of being deprived in the eyes of the law or decide whether loss of property and loss of life should be considered equal in the eyes of the law, etc.

 

[TheStatutoryApe]

For example, "prohibits the [...] government from depriving any person of life, liberty, or property, without due process of law"

The most often discussed definition here is actually what constitutes "due process". We have protection from state government based on most of the Bill of Rights through the "Due Process" clause of the 14th amendment but it has taken over a century of judicial "activism" for us to get that far. Originally it was interpreted to mean merely that all persons should receive a "fair" trial, though without actually defining what constitutes a "fair trial".

The "Right to Privacy" is a greater example as even the majority opinion for the decision that instituted it admitted that it is not something that could be pointed out in the constitution but that only by cross referencing several clauses could one find it hanging nebulously between the lines. Roe v. Wade being an extension of the "Right to Privacy" is all the more derivative.

Miranda is still being argued among the justices within the last decade I believe. The Miranda decision itself says that it is not a right.

Ensuing tangential discussion moved to https://www.physicsforums.com/showthread.php?t=411818[/color]

 

[Galteeth]

The most often discussed definition here is actually what constitutes "due process". We have protection from state government based on most of the Bill of Rights through the "Due Process" clause of the 14th amendment but it has taken over a century of judicial "activism" for us to get that far. Originally it was interpreted to mean merely that all persons should receive a "fair" trial, though without actually defining what constitutes a "fair trial".

The "Right to Privacy" is a greater example as even the majority opinion for the decision that instituted it admitted that it is not something that could be pointed out in the constitution but that only by cross referencing several clauses could one find it hanging nebulously between the lines. Roe v. Wade being an extension of the "Right to Privacy" is all the more derivative.

Miranda is still being argued among the justices within the last decade I believe. The Miranda decision itself says that it is not a right.

Roe vs. wade would be the classic example of legislating from the bench. Irregardless of your feelings on abortion, the arguments just aren't found in the constitution.

That said, I do think it is important for judges to interpret the intent of the constitution when ruling, even if such intent is not explicitly found in the document.

An example of a very ambiguous phrase is the general welfare clause, whose inclusion was controversial at the time of the constitution's writing. Taken literally, it can be used to justify any action the government wished to take, except those that are strictly forbidden (and practically this is how it is interpreted in modern times.) Of course most of the constitution's framers assumed such an interpretation would be absurd.

I think the judiciary has done a good job in general of holding the government in check. I am curious, could people give me some examples besides Roe vs. Wade that they consider judicial overreach?

 

[Gokul43201]

In my layman opinion, the arguments last year (or the year before - context: DC gun law) that the second clause in the 2nd Amendment is not predicated upon the first, is at least grammatical overreach.

Moderator's note: ensuing tangential discussion moved to https://www.physicsforums.com/showthread.php?t=411810[/color]

 

[turbo]

I think the judiciary has done a good job in general of holding the government in check. I am curious, could people give me some examples besides Roe vs. Wade that they consider judicial overreach?

If we take Rand Paul at his word, he would prefer to roll back equal-rights legislation such that private entities would have the right to practice racial discrimination. I'm assuming that he would categorize relevant civil-rights decisions as "judicial activism", though you can draw your own conclusions.

 

[BobG]

Roe vs. wade would be the classic example of legislating from the bench. Irregardless of your feelings on abortion, the arguments just aren't found in the constitution.

Which arguments?

1) The right to privacy? The court acknowledged that and relied on a long history of case law - a large majority supporting an implied right to privacy, but with quite a few cases denying it or at least limiting it. A majority isn't a consensus, hence making this a legitimate case for the court to hear.

2) The right for a state to regulate medical procedures? I agree that right isn't found in the Constitution. None the less, they didn't find regulating medical procedures as unconstitutional provided they served a legitimate interest. The justification for no restrictions on early abortions was partly based on the fact that they were as safe for the mother as childbirth was.

3) The definition of a person? I agree that isn't found in the Constitution. The court once again used case law (plus a healthy dose of history) to decide there has never been a consensus on when human life begins. In fact, throughout history, most considered life as beginning when visible movement occurred or at birth. One could say the court used at least some judicial restraint by being careful not to define when life began in their ruling.

4) While the court was careful to specifically not define when human life began, their rulings on when the state could consider the "potentiality of human life" would seem to practically define human life as beginning at viability and I agree that definition isn't found in the Constitution.

I do agree this decision was "legislating from the bench" since there was no need to break pregnancy into trimesters and rule what type of restrictions could be placed on each trimester in order to decide this case. In fact, I think making up policy on when abortions are legal, restricted, or illegal is going far beyond what the Constitution allows the courts to do.

They should have restrained themselves to either upholding the Texas laws or striking them down without taking the extra step they did. A little restraint would have also allowed them to stop safely at "no consensus on when human life begins" without immediately contradicting themselves by using viability as the standard.

I'd also note that simply striking down the Texas law would have made have made abortions legal with no restrictions at least until Texas passed a new abortion law that finally did stand up to USSC scrutiny. Or perhaps some other state, since the states would be passing laws and having them struck down until they hit on a good one through trial and error. Suddenly the "legislating from the bench" argument becomes one of semantics, since one could say the court simply laid out some guidance on what states should consider if they hope to have their laws pass USSC scrutiny. (I'm not sure I like this rationale, but I at least understand the court's thinking.)

I guess the problem I have with most "this was legislating from the bench" arguments is that they then go on to attack parts of the issue that the court should legitimately consider; not the part that really was "legislating from the bench".

People use this argument whenever judges don't restrict themselves to a "fair reading of the Constitution" when deciding a case. Except not restricting themselves to a "fair reading of the Constitution" includes using precedents of case law, which is legitimate, in addition to actually creating new laws in their decision, which is not legitimate.

In this case, I'm not so sure judicial restraint would have satisfied many people, since then the issue would have to be resolved point by point by court case after court case. It was at least expedient. (Not that satisfaction and expediency should be the number one goal of the US Supreme Court when those goals conflict with the court's role under the Constitution.)

 

[turbo]

People use this argument whenever judges don't restrict themselves to a "fair reading of the Constitution" when deciding a case. Except not restricting themselves to a "fair reading of the Constitution" includes using precedents of case law, which is legitimate, in addition to actually creating new laws in their decision, which is not legitimate.

In this case, I'm not so sure judicial restraint would have satisfied many people, since then the issue would have to be resolved point by point by court case after court case. It was at least expedient. (Not that satisfaction and expediency should be the number one goal of the US Supreme Court when those goals conflict with the court's role under the Constitution.)

In the case of Roe v Wade, you'd have to crawl into the heads of the justices to figure out what was behind the decision. For certain, there was always an economic/class distinction that was well-known but poorly-publicized. Women from wealthy families always had access to safe, discrete abortions. Poor women didn't. They were either forced to bear the child (even if conceived through forced incest or rape) or undergo a very risky abortion in dicey conditions. The invocation of personal rights and privacy in regard to abortion was a smoke-screen, IMO, that allowed the court to side-step some potentially touchy motivations while righting a long-standing wrong.

 

[BobG]

In the case of Rowe v Wade, you'd have to crawl into the heads of the justices to figure out what was behind the decision. For certain, there was always an economic/class distinction that was well-known but poorly-publicized. Women from wealthy families always had access to safe, discrete abortions. Poor women didn't. They were either forced to bear the child (even if conceived through forced incest or rape) or undergo a very risky abortion in dicey conditions. The invocation of personal rights and privacy in regard to abortion was a smoke-screen, IMO, that allowed the court to side-step some potentially touchy motivations while righting a long-standing wrong.

It definitely did start to have an impact on the violent crime rate about 18 years later, but that's interesting trivia that both pro-lifers and pro-choicers found to hot to touch. Pro-lifers, because it would seem to suggest abortion has good effects and pro-choicers because aborting mass numbers of those most likely to commit violent crimes seems like a pretty grisly solution.

 

[Galteeth]

If we take Rand Paul at his word, he would prefer to roll back equal-rights legislation such that private entities would have the right to practice racial discrimination. I'm assuming that he would categorize relevant civil-rights decisions as "judicial activism", though you can draw your own conclusions.

This is getting off topic, but what you are referring to was the civil rights act which was congressional legislation.

 

[Galteeth]

Which arguments?

1) The right to privacy? The court acknowledged that and relied on a long history of case law - a large majority supporting an implied right to privacy, but with quite a few cases denying it or at least limiting it. A majority isn't a consensus, hence making this a legitimate case for the court to hear.

2) The right for a state to regulate medical procedures? I agree that right isn't found in the Constitution. None the less, they didn't find regulating medical procedures as unconstitutional provided they served a legitimate interest. The justification for no restrictions on early abortions was partly based on the fact that they were as safe for the mother as childbirth was.

3) The definition of a person? I agree that isn't found in the Constitution. The court once again used case law (plus a healthy dose of history) to decide there has never been a consensus on when human life begins. In fact, throughout history, most considered life as beginning when visible movement occurred or at birth. One could say the court used at least some judicial restraint by being careful not to define when life began in their ruling.

4) While the court was careful to specifically not define when human life began, their rulings on when the state could consider the "potentiality of human life" would seem to practically define human life as beginning at viability and I agree that definition isn't found in the Constitution.

I do agree this decision was "legislating from the bench" since there was no need to break pregnancy into trimesters and rule what type of restrictions could be placed on each trimester in order to decide this case. In fact, I think making up policy on when abortions are legal, restricted, or illegal is going far beyond what the Constitution allows the courts to do.

They should have restrained themselves to either upholding the Texas laws or striking them down without taking the extra step they did. A little restraint would have also allowed them to stop safely at "no consensus on when human life begins" without immediately contradicting themselves by using viability as the standard.

I'd also note that simply striking down the Texas law would have made have made abortions legal with no restrictions at least until Texas passed a new abortion law that finally did stand up to USSC scrutiny. Or perhaps some other state, since the states would be passing laws and having them struck down until they hit on a good one through trial and error. Suddenly the "legislating from the bench" argument becomes one of semantics, since one could say the court simply laid out some guidance on what states should consider if they hope to have their laws pass USSC scrutiny. (I'm not sure I like this rationale, but I at least understand the court's thinking.)

I guess the problem I have with most "this was legislating from the bench" arguments is that they then go on to attack parts of the issue that the court should legitimately consider; not the part that really was "legislating from the bench".

People use this argument whenever judges don't restrict themselves to a "fair reading of the Constitution" when deciding a case. Except not restricting themselves to a "fair reading of the Constitution" includes using precedents of case law, which is legitimate, in addition to actually creating new laws in their decision, which is not legitimate.

In this case, I'm not so sure judicial restraint would have satisfied many people, since then the issue would have to be resolved point by point by court case after court case. It was at least expedient. (Not that satisfaction and expediency should be the number one goal of the US Supreme Court when those goals conflict with the court's role under the Constitution.)

It is the building of tenuous inference upon inference. Their is first the implied right to privacy, which is then extended as a right to medical privacy, which is then extended to cover privacy on the issue of abortion, which is then extended to define what types of abortion this right covers.

This is certainly, "legislating" from the bench. It is striking down a state law on the basis of constitutional supremacy, while making a series of inferred jumps that are between the lines and based on case laws to basically decide the issue of abortion. This is not properly the province of the courts, but of the states. I can understand the argument of invoking the equal protection clause to set a federal standard, but that would be a matter for congress.EDIT: I recommend we keep this discussion limited to judicial overreach, and possibly how roe v. wade is or is not an example, as opposed to discussion of abortion itself.

 

[Galteeth]

It definitely did start to have an impact on the violent crime rate about 18 years later, but that's interesting trivia that both pro-lifers and pro-choicers found to hot to touch. Pro-lifers, because it would seem to suggest abortion has good effects and pro-choicers because aborting mass numbers of those most likely to commit violent crimes seems like a pretty grisly solution.

That's possible, but it's not the only causative factor. I would recommend if you wish to discuss the topic to start a new thread, as it is not directly relevant to the subject at hand.

 

[BobG]

This is certainly, "legislating" from the bench. It is striking down a state law on the basis of constitutional supremacy, while making a series of inferred jumps that are between the lines and based on case laws to basically decide the issue of abortion. This is not properly the province of the courts, but of the states.

This is specifically what I mean. Using case law (or common law) has a history that predates the creation of the US. It would be ludicrous to think there was some assumption that courts wouldn't use case law as precedents when the Constitution was written. It would have had to be specifically mentioned when creating the judicial branch if the Constitution intended to make a sudden change in how the courts operated.

That's why I don't like the Roe v Wade example. It's a bait and switch. A case that definitely did legislate from the bench, but not for the reasons most people like to claim.

 

[Galteeth]

This is specifically what I mean. Using case law (or common law) has a history that predates the creation of the US. It would be ludicrous to think there was some assumption that courts wouldn't use case law as precedents when the Constitution was written. It would have had to be specifically mentioned when creating the judicial branch if the Constitution intended to make a sudden change in how the courts operated.

That's why I don't like the Roe v Wade example. It's a bait and switch. A case that definitely did legislate from the bench, but not for the reasons most people like to claim.

Fair enough, and I think I was not clear enough. It is not the reliance on case law, but the building of questionable inference upon questionable inference to arrive at a new law.

I don't see for example, miranda rights as being the same, since the right to a fair trial implies some necessary fairness in the way people are questioned, as well as a logical extension of the intention of the habeas corpus principle.

I suppose it is ultimately subjective, but one seems like a direct inference, while the other seems like a nebulous construction.

To put it a different way, a reasonable person could conclude that miranda protections are necessary from the right to a fair trial principle. It's much harder to get to the conclusions of roe v. wade. Furthermore, the rights outlined in roe v. wade are not applied to areas where they would theoretically be similar, such as medical drug use and euthanasia. It seems like such a narrow and selective application of principles. And why would medical privacy apply only to certain trimesters? I agree with your general assesment. I am a bit confused about the part about the state regulating medical procedures. Are you referring here to the federal government, or the state of Texas?

 

[BobG]

I am a bit confused about the part about the state regulating medical procedures. Are you referring here to the federal government, or the state of Texas?

Either.

In Roe v Wade, there's a view that if the procedure is safe for the mother, then neither the states nor the federal government should be interfering if the abortion is done before viability of the fetus.

In other words, the states could ban abortions (or at least restrict them since even dangerous medical procedures have less risk than not performing the procedure in some situations) at any time if they were deemed unsafe for the mother or at least risky. But if the procedure is safe, then the mother has a right to do whatever she wants with her body (a right to privacy) - at least until viability and then concerns for health of the fetus begin to come into play.

(The trimester policy the court laid down was a snap shot of the state of medical treatment in 1973 and isn't necessary applicable to today. It was a policy that would surely become obsolete and, hopefully, the states would interpret the policy as guidance and not binding legislation in detail even if in spirit.)

States have no more right to interfere into abortions than they do plastic surgery or nose jobs - unless the procedure or material they're using for the implants is unsafe and then they can ban the unsafe procedure or material. In other words, you can't print safety warnings in small print on your products and then claim your customers have a right to use unsafe products if they want to (Oh, wait! Yes, you can! You can still sell cigarettes!).

I don't think there should be much debate about a state's right to ensure safe medical practices, since the mother's safety was never the real issue anyway. And I don't think the mother's right to privacy was ever a legitimate issue, either, since there's only one reason anyone would even be considering telling her what medical procedures she can have done or can't have done.

Abortion is a conflict between competing interests and how those competing interests are resolved depends on when the fetus begins to deserve some protections of its own rights.

The rest (including the legislating from the bench part) are peripheral issues and attacking them rather than the central issue is just an end around, hoping if the decision is overturned on a technicality, then a new make-up of the court might result in a more favorable decision on the central issue.

 

[Galteeth]

Either.


I don't think there should be much debate about a state's right to ensure safe medical practices, since the mother's safety was never the real issue anyway. And I don't think the mother's right to privacy was ever a legitimate issue, either, since there's only one reason anyone would even be considering telling her what medical procedures she can have done or can't have done.

This is more or less what I was trying to get at it. I was citing this an example of judicial overreach, which i said was not that common. I somewhat disagree in that I think there are other reasons people might want to make medical procedures the government's business, but that's not really relevant.

I am still interested in hearing from people such as the OP some of the examples of judicial overreach (perhaps a bit more recent then Roe v. wade) that they find troubling.

 

[Hurkyl]

I'm still waiting for Russ to explain to us how Souter's comments regarding jurisprudence signals the end of the world (according to Limbaugh and Beck). Apparently, Russ' radio can't get frequencies that carry the news and commentary of normal people. Too bad.

Before you get up on your high horse, you should first admit to yourself that Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

I admit when skimming the speech, I probably would not have noticed the term was being used counter-intuitively (and would have had a similar initial opinion as Russ) if it weren't for the fact that his speech is very similar to some arguments I recently made in another forum, thus alerting me to the fact something was weird.

 

[TheStatutoryApe]

I don't see for example, miranda rights as being the same, since the right to a fair trial implies some necessary fairness in the way people are questioned, as well as a logical extension of the intention of the habeas corpus principle.

While I agree with your primary point I would disagree that there is any direct inference as the basis for Miranda. What makes Miranda so singular a decision is that it does not create any law or imply any right. It is a case where the USSC has more or less created a memorandum on procedural conduct extending all the way down to the very lowest rungs of the nation's justice system.

[...]Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

I admit when skimming the speech, I probably would not have noticed the term was being used counter-intuitively (and would have had a similar initial opinion as Russ) if it weren't for the fact that his speech is very similar to some arguments I recently made in another forum, thus alerting me to the fact something was weird.

I think that Souter was outlining an ideological divide on constitutional interpretation. The term "fair reading" definitely hints at a preference for the strict textualist approach. Considering his audience I would imagine that he assumed they would be familiar enough with such issues to realize his intent. We can see in the article that some people do not understand the interpretive approaches since the article seemingly notes Plessy v. Ferguson as a case of "judicial activism" (more specifically a departure from the constitution) when it was anything but. Plessy was a classic conservative textual interpretation as there is absolutely nothing in the constitution that would define "equal" to the exclusion of "separate but equal". Brown, that case that the article states vindicated Harlan, is considered a prime example of "judicial activism" as it not only sought to define "equal" outside of any textual or originalist interpretation but also led to the remedial court order which instituted school busing.

More than anything these responses to Souter's comments go a long way in explaining why avoiding public spotlight is so ingrained in the culture of the court.

 

[turbo]

Before you get up on your high horse, you should first admit to yourself that Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

My point is that there is no way to apply the wording in the Constitution directly to most modern-day legal problems, and that the reactionaries on the right that tout the all-encompassing infallibility and applicability of a 200+ year old document are either ignorant or lying.

Critics on the right generally claim that their less-radical counterparts are engaging in "judicial activism" and "legislating from the bench" though when their own allies do it there is not a peep. The recent court decision that equates "free speech" with unlimited monetary donations AND extends that right to corporations and other monied interests is a particularly egregious example of such activism. There are a lot of young neo-cons on the court right now, with life-time appointments, so any claims that judges appointed by Obama need to pass some kind of "purity test" ought to be taken with a rather large grain of salt. Really! The thought that a quiet, well-balanced justice like Souter is an "activist" is ridiculous on the face of it.

Moderator's note: tangential discussion on Citizen's United split off into https://www.physicsforums.com/showthread.php?t=411807[/color]

 

[TheStatutoryApe]

This is specifically what I mean. Using case law (or common law) has a history that predates the creation of the US. It would be ludicrous to think there was some assumption that courts wouldn't use case law as precedents when the Constitution was written. It would have had to be specifically mentioned when creating the judicial branch if the Constitution intended to make a sudden change in how the courts operated.

The section of the constitution defining the judicial branch is the shortest, simplest, and most lacking in particulars of any. There was apparently very little controversy in drafting this section and it is believed that since most of the framers were lawyers they had readily assumed the court would take on the general attitude of the british common law system. The Court was more or less left to its own devices and created its own set of procedures. If there is anything anywhere that says the USSC is only to give "fair reading" of the constitution it is among its own policies.

 

[Hurkyl]

[words]

Things would go a lot more smoothly if you would admit that you agree with Russ on the point that the SCOTUS should limit itself to judicial review, rather than engaging in judicial activism.

Your opinions on collection of whatever real or imagined persons you refer to by "reactionaries / critics on the right" probably belong in another thread, however.

The recent court decision that equates "free speech" with unlimited monetary donations AND extends that right to corporations and other monied interests is a particularly egregious example of such activism.

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

 

[turbo]

Your opinions on collection of whatever real or imagined persons you refer to by "reactionaries / critics on the right" probably belong in another thread, however.

Can you imagine Thomas, Roberts, and Alito (at a minimum) coming down on the side of private citizens as opposed to corporate interests? Even on matters of settled law? If so, please give some examples.

We have a very young neo-con contingent on the SC with life-time appointments. Comments made by Justice Souter regarding jurisprudence on the SC should not be any cause for alarm, despite the rantings of the right-wing media. Souter was a Bush (I) appointment and he is not a radical in any sense of the word. If Obama wants to appoint some moderate judges (I consider Kagan a moderate, BTW) to the court, fine.

Before we draw lines in the sand, I am a fiscal conservative at heart, and voted Republican quite religiously (to the dismay of my father) until Reagan went back on all his campaign promises, stole from the national armory, sold weapons to our sworn enemies (Iran) and used the proceeds to fund an illicit war in central America. Since then, I have had NO party allegiance, because there are crooks and creeps in both parties, and I'm not playing that game anymore. That's a sucker's bet.

 

[Hurkyl]

Comments made by Justice Souter regarding jurisprudence on the SC should not be any cause for alarm, despite the rantings of the right-wing media.

They should be, if by "fair reading model", Souter means the model where the SCOTUS considers the spirit and intent of the constitution and all relevant law in order to fairly review of the case.

Of course, I don't think that's what he means. But can we at least agree that things are alarming if I'm wrong and he really does mean that?

Since then, I have had NO party allegiance, because there are crooks and creeps in both parties, and I'm not playing that game anymore. That's a sucker's bet.

How do you figure you're not playing the game? You take every opportunity you can to derail threads to bash the right wing!

 

[TheStatutoryApe]

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country*, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

*my emphasis added

Going back to Brown, this is the primary aspect which compelled the court to its decision. The court decided primarily based on the practical outcome of the "separate but equal" doctrine and its perception of the impact of such a policy weighed against the good of the country and its citizens.

The decision in Citizens United is based on a similar principle. Faced with the limited rights afforded to fictional legal entities it was up to the court to consider the practical impact of that limitation of rights and come to a decision based on what it felt was in the best interests of the country and its citizens. Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

 

[TheStatutoryApe]

They should be, if by "fair reading model", Souter means the model where the SCOTUS considers the spirit and intent of the constitution and all relevant law in order to fairly review of the case.

Of course, I don't think that's what he means. But can we at least agree that things are alarming if I'm wrong and he really does mean that?

A brief overview of some interpretive approaches.
http://en.wikipedia.org/wiki/Judicial_interpretation

It is not very hard to see that some may have rather differing opinions on the meaning of "fair reading" and may even want to throw the term out completely due to a perceived bias in approach. Those other than "textualists" and "originalists", particularly "developmentalists" and "doctrinalists", are often portrayed as "activist" depending on the context.

 

[Hurkyl]

*my emphasis added
...
Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

 

[TheStatutoryApe]

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

The SCOTUS does not do this even though opponents of decisions may paint them as such. Giving momentary credence to the idea that Souter may be subscribing to some cartoonish interpretation to his role as judge is just as irrelevant a line of debate as Souter proposing some cartoonish interpretation of "fair reading". Why you would make such an 'if-then' point I am having a hard time understanding.

 

[BobG]

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

The decision in Citizens United is based on a similar principle. Faced with the limited rights afforded to fictional legal entities it was up to the court to consider the practical impact of that limitation of rights and come to a decision based on what it felt was in the best interests of the country and its citizens. Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

While I agree with the sentiments expressed in Hurkyl's first post and that some people did (and do) base their entire argument on what they personally feel is good for the country, I think TSA more accurately describes the key point in the Citizen's United case (i.e. - why in the world would a limited legal entity be treated as a human being). Both individual rights and the good of the country have to be considered in their entirety.

While it may not be appropriate to make a ruling based entirely upon what they think is for the good of the country, it's certainly an important consideration. For example, the courts are usually very unlikely to order the government to release classified information in the same way it might order a corporation to release documents necessary for a plaintiff to prove their case against a corporation. In fact, courts generally try to steer away from hearing cases dealing with foreign policy or national security. That, plus not allowing a plaintiff access to the info he needs to prove his case, are both violations of due process, but justified by the fact that releasing classified info would be bad for the country.

 

[mheslep]

The SCOTUS does not do this even though opponents of decisions may paint them as such. [...]

Are you really attempting to dismiss the entire legislate-from-the-bench line of criticism with a declaration, especially given some of those critics are sitting members of the court?

 

[TheStatutoryApe]

Are you really attempting to dismiss the entire legislate-from-the-bench line of criticism with a declaration, especially given some of those critics are sitting members of the court?

The painted picture I was responding to was one in which these judges might make decisions with absolutely no basis in law but only based on what they deem good for the country.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

We are talking about intelligent educated judges with decades of experience in law hand chosen by presidents and vetted through congress. It is one thing to use exaggerated terms such as "legislating from the bench" and entirely another to claim that any may in fact absolutely ignore the law in favour of their own personal opinions.

 

[russ_watters]

Sorry, I've been absent since the weekend. I'll try now to take another stab at this. Starting where I left off and with further expansion:

Just to clarify, you are making all of the following assertions?

• There are no ambiguities in the law
• The letter of the law overrules the spirit of the law
• There are no conflicts between laws

As I said before, I'm making none of those assertions, nor do I believe them to be true. While I can't help but acknowledge the reality that what is clear to me is not as clear to you (re: your criticism of my first sentence of the OP), you have nevertheless missed my point so badly I'm not yet willing to concede that Souter's point isn't clear (or that you understand it properly)! What I will acknowledge, though, is that I wrote most of the post based on the op-ed, which has picked quotes and paraphrases to make the argument I'm making. So I got that picture of Souter's speech before I even read it!

Anyway, the idea of bullet points appeals to me to try to gain clarity, so I'll give it a shot, in outline form. This will be a mix of my attempt to present a factual recounting of Souter's speech, plus my opinions about it. Hopefully it will be clear which is which and hopefully I can get people to understand my position (or, more to the point, Souter's) - then discuss its merits or lack thereof. I can't just say things without explanation, though, so these outline points will be long. Not sure if that'll work, but I'll give it a shot. So...

1. Souter's speech is a discussion of two different models of the decision-making process of the courts.

2. The "fair reading model". Souter gives a long discussion of what this entails, but in essence, the "fair reading model" is where the judge faithfully reads the Constitution, the law and the intent of the framers of the Constitution and law and decides fairly based on the words and intent whether they match each other. If they do, the law is upheld. If they don't, the law is struck down. In summary, he says: "On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively."

3. Souter correctly states that the Constitution and the law are not always completely clear and the USSC gets cases where it isn't clear - deciding cases that aren't clear is precisely why you need the USSC. However, imo, this does not give cause to discard the model, it only makes it more important for judges to be impartial and attempt to faithfully follow it. But Souter says:

4. "...for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality." While I certainly agree that in practice, the fair reading model is not followed faithfully, he is arguing that that is the right thing to do...

5. I see it as an acknowledgment that he violated his mandate as I see the "fair reading model" to be the beginning and end of his mandate.

The discussion could practically end here, as the particulars of what model he advocates is only tangentially related to the issue of whether the above really is his mandate. But it is trivially obvious: If you are not faithfully interpreting the law/Constitution, then you are not faithfully interpreting the law/Constitution. Souter saying he doesn't faithfully interpret the Constitution is an acknowledgment that he is violating his mandate. The rest, by Souter, is basically an attempt to argue his way out of his mandate.

But the other model does need to be discussed, as many people (including him) see the "other" model as the true mandate of a judge.

6. The second model is called, by critics, "judicial activism". Souter uses the word "activism", but doesn't connect the two words. He also uses the phrase "making up the law", which matches pretty closely the common term "legislating from the bench". So, imo, he's arguing in favor of this model and against the fair reading model, at least in cases where clarity does not permit/force usage of the fair-reading model. Souter is less clear about the definition of this model than the "fair reading model". Instead of clearly defining it, he argues it via case study:

7. Case 1: The Pentagon Papers. The NYT and Washington Post obtained and began to publish a bit at a time, classified documents regarding the Vietnam war. The government sought to stop them. It was a 1st Amendment case. There was much dissent in the USSC with many justices disagreeing on important points of the issue, but it nevertheless ruled 6-3 in favor of publication. http://en.wikipedia.org/wiki/Pentagon_Papers
As detailed by Souter, the argument came to focus on a literal reading of the first Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press". If this were literally true, then there can be absolutely nothing that the government can restrict you from saying or publishing. The attorney for the government argued: "The problem in this case,” he said, “is the construction of the First Amendment" and "that 'no law' did not mean 'no law'". Though the government lost its case, it won this part of the argument: "no law" does not mean "no law".

Souter argues that this is an example where the "faithful reading" model fails and one that critics would call "judicial activism". Being such a critic, I can say with authority: he's wrong. Everyone (me, Souter, the Papers' Court, the lawyer for the gov't) are in agreement that the 1st Amendment is poorly written. But that does not mean a "fair reading" model should take it to be literally true. Why? Because the fair reading model is not dumb and excessively pedantic, siezing upon well-understood errors. The intent of the framers and the logical rediculousness of "no law" was/is well understood by all. Everyone understands that those literal words are not what was really meant. So this isn't a difficult case, it is one of those unambiguous cases where the intent of the framers was clear, even if the words in the Constitution itself weren't.

In short, this example is not an example of "judicial activism" and so is a red herring argument by Souter.

8. Case 2: Brown v. Board of Education vs Plessy v. Ferguson. These are the two "separate but equal" cases. This one is a perfect example, but he gets it precisely backwards. It truly is the perfect test issue and clearly shows where he is wrong. The Constitution, as originally crafted, did contain moral flaws and logical inconsistencies where civil rights and racism are concerned. I think most people would agree with that (and some already have in this thread). But Plessy was in 1896, after those flaws were corrected. Plessy was decided by an activist court of the reactionary kind, clinging to the already overturned by Amendment, racist interpretation of the constitution that had existed before. Souter's description is "mystifying" in how badly it misses the mark:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.

Yes, clearly I wouldn't think a court in 1896 would rule segregation wrong. He doesn't explain why, but I will: the court was racist and didn't faithfully follow the Constitution. So his next sentence is where it gets mystifying:

But if Plessy was not wrong, how is it that Brown came out so differently?

Huh? Plessy was wrong and that's why Brown was right! As I quoted earlier, the lone dissenter, a racist who saw through his own flaw, got it right. He understood and acknowledged that neither the Constitution nor logic allowed the interpretation that the court was using.

The Plessey court erred in that they applied their own (and the originators of the laws' own) racist/twisted morality to the question instead of faithfully interpreting the Constitution. That is the essence of "judicial activism".

Further, there is a clear logical flaw in Souter's argument here. No doubt, he believes the Brown verdict correct and he's arguing that the Plessy verdict was correct for its time. This can only be true under a judicial activism model and the contradiction provides a logical rebuttal of the model. The model is not internally consistent if two contradictory judgements can both be true.

Activist courts still get racism issues wrong, but now the activism has swung in the other direction from Plessy: the courts now favor racist policies in an effort to fulfil preconceived quotas and perceptions, rather than simply making the playing-field level. Policies like school bussing and rejecting test results when the desired racial makeup of those who do best isn't seen are racist have been favored by the courts. But the Constitution does not and should not mandate forced equality of outcome, but merely ensure the playing field is kept level. As Clarence Thomas as put it: "Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation." What is very disappointing from Souter, is that he does not address cases where "judicial activism" is alleged. I'm not sure if he's doing it on purpose or just doesn't understand peoples' complaints against him and other activists, but he got us close enough in acknowledging the first half: that he doesn't believe in the "fair reading model".

 

[russ_watters]

Here's a long paper on the concept of "legislating from the bench": http://legacy.lclark.edu/org/lclr/objects/LCB_11_1_Peabody.pdf

Highlights:
-The term and belief among Conservatives that the issue exists originates from Reagan's time.
-Unsuprisingly, conservatives use the term more than liberals, to attack liberal decisions not decided in a constructivist way.
-The concept, however, goes back to the time of the Constitution's founding.
-The term has more than one meaning as it is used as a catch-phrase by politicians. Distilling it intellectually yields:
---Policy interference. Ie, giving an opinon based on personal belief of what the policy should be, not based on a fair reading of what the words and intent of the law and constitution are.
---Approaches to rendering decisions not based on "fair reading". The paper gives examples where public opinion was consulted, such as in death penalty cases.
---Content of decisions exceeds discussion of the law itself. Ie, providing commentary beyond the interpretation. This one I'm actually ok with as long as it doesn't creep into the decision. If there is a logical flaw in a law or the Constitution, they should point it out: while still doing what the Constitution requires. This could lead to the seemingly contradictory possibility of upholding a law while stating that it should be repealed.
---Exceeding the scope of the case.
---Responding to special interests. The paper argues that some special interest groups have been shown to be more successful in getting cases reviewed than the merit of such cases would imply they should.
---The paper argues that the concepts of "legislating from the bench" and "judicial activism" are separate, that "activism" whould be more a measure of willingness to overturn precedent. I'm using the words mostly interchangeably, but if this is in error, the term "legislating from the bench" is the broader and preferred term, with "judicial activism" being a subset of it. I'm ok with this distinction, but don't believe it really changes anything here.

Here's an important quote:

As indicated earlier in this Article, the overwhelming number of
statements about legislating from the bench by scholars and political officials
have a decidedly negative tone. Essentially, no one from the academy or the
political arena rises to the explicit defense of this practice.

Now taken from politicians, this is as useless as it is self-evident: The term is used by Republicans to attack Democrats. But taken from academics, it tells us that there is truth to and agreement about the characterization: legislating from the bench is a bad thing. It also tells us that Souter stands nearly alone in his defense of the concept. As I said previously, it was surprising to see - though I will give him credit for being honest, where I think others would just try to cover it up. Nevertheless, it should be clear that by definition and at face value, "legislating from the bench" is a bad thing:

According to one scholar, “the whole idea [of our political scheme]
is for the Court to avoid legislating.”133

Nevertheless, the author positions himself to be one of those dissenters:

In this section, I argue, contrary to the conventional wisdom, that many of
the elements of legislating from the bench previously identified are both
inevitable and desirable.

Those who disagree with me can feel free to find support for their arguments in the paper However, in at least one case, he's using a different definition than I am:

2. America’s Common Law Foundations
Closely related to these observations, the common law foundation of the
United States is another factor that makes legislating from the bench somewhat
inescapable. Among other features, the common law is distinguished by its
reliance on bench-made law.157 Common law systems authorize courts and
judges to speak and even make law where legislatures are silent or don’t speak
clearly. These decisions can be overruled (or codified) by legislatures, but in
the mean time, the judiciary’s steady application of what are concededly
invented, common law rules is supposed to create stability and reliability in our
legal system.158 In many ways, these creative judicial acts seem to reflect the
principles of judicial lawmaking targeted by critics.

As I explained before, the "fair reading" model would faithfully interpret not just the words, but the intent of a passage in the law or Constitution. Doing so requires an understanding of and application of applicable caselaw. So this is not, "legislating from the bench". This may be related to the issue of him using broader definitions than what I am criticizing: "judicial activism" being a subset of "legislating from the bench".

 

[russ_watters]

Some may remember this issue coming up with the Sotomayor confirmation. She was also unusually candid on the subject:

Adopting a trope more often associated with conservatives than liberals, she said repeatedly that judges should simply apply the law, not legislate from the bench. "My judicial philosophy," she declared in her opening statement, is simple: "fidelity to the law. The task of a judge is not to make law. It is to apply the law." And as if to dispel any impression that this was rhetorical boilerplate, Sotomayor returned to the same theme throughout the hearings.

http://www.time.com/time/politics/article/0,8599,1910714,00.html

But that really was just "rhetorical boilerplate" and both she and Time Magazine in that article clearly attempt to have it both ways. While trumpeting her record on the fair reading model, it simultaneously argues in favor of legislating from the bench and provides an example where she did!:

It's too bad that neither Sotomayor nor any of the Senators felt at liberty to say what many scholars and court observers believe to be true: Justices often legislate from the bench, and sometimes that's a good thing.

The idea that the Supreme Court can make policy shouldn't be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action.

The affirmative action case was, of course, her case that she decided in a "legislating from the bench" way as:

Whether or not you like the decision, there's no question that the court was making policy...

And then as if to confirm that most of what was said to set up the article was a lie (by Sotomayor and by Time):

Why couldn't Sotomayor acknowledge that Justices often legislate from the bench?

Because even though she no doubt thinks she's right, here own personal ambition is more important. So she lied to cover up what she did. And this is, of course, part and parcel of the problem: a lot of judicial activism is ego driven and dishonest.

 

[russ_watters]

I'll be back later to respond to some posts from earlier - I want to give it some time to settle, though, so I don't end up rehasing an obsolte point from earlier.

 

[TheStatutoryApe]

1. Souter's speech is a discussion of two different models of the decision-making process of the courts.

He refers to the "fair reading" model and states the opinion that it is obviously unable to produce decisions in many or most cases brought before the supreme court. He also mentions "judicial activism" as a common epithet for the type of decisions made under these circumstances when one does not agree with the decision despite the alternative approaches being common and necessary.

He never really distinguishes two modes or schools of thought. His point is that what is commonly referred to as "judicial activism" is standard practice in the court on all sides of the ideological divides. That "judicial activism" is merely political rhetoric.

8. Case 2: Brown v. Board of Education vs Plessy v. Ferguson. These are the two "separate but equal" cases. This one is a perfect example, but he gets it precisely backwards.

From your personal perspective perhaps but as far as the standards of interpretive approach and the history of the court goes he has it exactly right. The decision in Plessy was a standard strict and conservative textualist approach leaning on originalism which was the norm for court decisions through most of the history of the US. According to the strict textualist approach if it is not specifically in the constitution it is not there at all. Since nothing in the constitution would define "equal" to the exclusion of "separate but equal" then "separate but equal" is not unconstitutional. And if we take a moment to look back at the intent of those persons who wrote and ratified the sections of the constitution (originalism) we are unlikely to find any reason to believe that it was intended white and black people should live in mixed society.

You are looking at this in hind sight and through a cultural lens, a cultural where it was decided half a century ago that "separate but equal" is not equal.

 

[Gokul43201]

Discussion of gun laws moved here. Some content there may be relevant to those interested in this thread[/color]