Thursday, July 21, 2005

An Activist Court

Given that my practice has a significant component before the Supremes, don't expect a lot of commentary here on John Roberts' nomination to succeed Sandra Day O'Connor. Discretion being the better part of valor, etc. (yeah, I know; "Since when do you demonstrate discretion, Young?").

However, I think there's no lack of discretion in commenting upon some of the nonsense I've seen around.

For instance, at least one individual on the far Left has figured out that an "activist" court is not something that Americans and/or Virginians want, and therefore, has decided to redefine the term to suggest that reversal of an activist decision like Roe v. Wade is what would be "activist," and that the hallmark of a "true conservative" is one who would re-affirm it. No less an authority than Karen Raschke, president and chief executive officer of the Virginia League for Planned Parenthood Inc., is now telling conservatives how to be conservative.

Does the far Left really labor under the misapprehension that they have the authority to tell conservatives how to be conservative? It's either arrogance or a dependence upon the woeful ignorance of conservatives. Or maybe it's just an appeal to so-called "moderates" who want to pretend to be "conservatives" while feeling the love of the far Left.

But some people have no excuse. Yesterday, in the Potomac News, one of the replacement columnists, Cornell Brooks, was trying to imply the old far Lefty saw that those who condemn judicial activism must be closet racists, because, after all, Brown v. Board of Education was an "activist" decision.

Sorry, Cornell, but that dog won't hunt, and you (as a Yale-trained lawyer) should know better.
Brown was an originalist decision in its result that overturned the activist decision, which was Plessy v. Ferguson (1897), which had held that "separate but equal" was constitutional. Brown was activist only in the lack of quality in its reasoning, which relied upon social science data rather than the unambiguous words of the Civil War amendments.

Once again, the far Left demonstrates the dishonest lengths to which it will go to corrupt the Constitution, political debate, and the political process.


Ben Kyber said...

You should really learn how to spell observer. Then i might find your comparisons between Sen. Schumer and Hitler a bit more compelling. Ah, who am i kidding, you seem to be a little out there.

James Young said...

You really need to familiarize yourself with the use of the spacebar, then I might find your comments a bit more... awww, who am I kidding? That you think I compared Chuckie with Hitler demonstrates that little you say can be considered "compelling." And I'll take that you consider me "a little out there" as high praise, coming as it does from a far Leftie.

Virginia Centrist said...


How do you define an "activist" decision? I'm not a lawyer or even a law student so I'm not really up on what exactly that means. My understanding of the term could easily apply it to Brown v. Board.

Isn't an "activist" judge a judge who commands a state to do certain things? In other words, "legislating from the bench." And isn't that what Brown v. Board did? In fact, many if not all of the civil rights decisions of the 50s and 60s were activist.

Activist decisions can be good or bad. The point isn't whether they're good or bad, but that they're not democratic (at least that's the argument). A democratic solution to the segregation problem would be to wait for the state governments to outlaw it rather than compelling them.

I agree that Brown used some faulty logic (particularly the psycho babble parts) but at least the conclusion was correct.

James Young said...

I suppose I would define it as one which derived its basis from other than a legitimate source, e.g., whatever strike the judge's fancy at that particular time, though I might want to develop a definition more fully. Hence, a constitutional decision must be based in the text of the Constitution, while a statutory decision must be based upon the text of the statute. I would consider even use of legislative history in statutory analysis to be suspect.

Hence, Brown is both activist and originalist. It is originalist in its result, but activist in its reasoning. And activism in reasoning inevitably leads to problematic results, as the reasoning strays from the text of the Constitution.

As for them "not being democratic," that would not be my criticism of activist decisionmaking, though I might want to think about it some more. "Democratic" with a little "d" is not the type of government we have; we have a republic. Therefore, Brown is appropriately criticized as activist not because it is anti-democratic, or even anti-federalism, but because it relied upon dubious grounds to achieve a just end, and hence, sowed the seeds of its own criticisms. It would have been much less controversial from a legal perspective had the Court rooted its decision more firmly in the text of the Constitution. And with all that having been said, "the psycho babble parts" might have been less offensive had they merely formed the basis for the remedy, rather than justification for the judgment.

Anonymous said...

I'm sensing a pattern here. I'm sorry about the heat today, obviously a plot from the FAR LEFT.

James Young said...

Anon 8:21 --- Obviously, you haven't been paying attention. The heat on Wednesday was obviously a result of global warming which, as everyone knows, is a plot by far Right capitalists to burn out the planet.

Ya gotta keep up!

karaschke said...

On a sleepless night, I bumped into your blog and I've enjoyed it. Then I see you've used my name, without mentioning that I too, am a lawyer, though not necessarily as bright as you.

It's too late at night for me to describe to you the activism I've encountered along the fairly brief litigation road that I have travelled on. Do you recall the 1997 challenge we in VA brought against the Parental Notification Act? I was the Pl Par lobbyist back then and also local counsel in the litigation; the AG's office starred Bill Hurd (a genuinely nice - and intelligent - guy), who nonetheless argued that "'may'" means 'shall.'" Who knew that would turn out to be a winning argument?! That "shall" language arises from the Bellotti v. Baird (II) Sup Ct decision on the requirements of a [likely judicial] bypass. Bellotti reuired the "shall," mandatory language regarding action after a finding that a minor was mature. Well, the Va law said "may," and that's unconstitutional. Judge Michaels agreed; I forget why, but we were then sent to a Richmond Dist Ct and we received the same finding. Bingo, case dismissed on SJ.
Enter Luttig, and, months later, after much intervening ltigation, the Fourth Circuit decision stands. "May" now means "shall" whenever it needs to mean the opposite thing in order to ensure a result to the supposedly conservative judge's (and judges') liking.
More stories of judicial activism ensue, esp from our 1998 "PBA" litigation and eventual win in the Supremes (I also worked as a staff att'y for the Center for Reproductive Law & Policy [now "Center for Repro Rights".])

I suspect you may be as curious as I am about the next stage in the NH parental notice case of Ayotte, brought as a challenge, at least in part, to the still standing requirement that abortion restrictions must contain certain language. Justice Roberts engineered a unanimous Ct decision, requiring the Dist Ct judge to determine the NH legislature's intent. So, the big question is whether the judge will "read in" an intent to write the law in a constitutional manner, and then "write it in" by inference - or activism. I have no idea...

t said...

I hope you have many sleepless nights, Karen, for your role in fighting for the continued unabated legal killing of unborn infants.