This is part of The American Bar Association’s report:
HALF OF U.S. SEES ‘JUDICIAL ACTIVISM CRISIS’
ABA Journal Survey Results Surprise Some Legal ExpertsMore than half of Americans are angry and disappointed with the nation’s judiciary, a new survey done for the ABA Journal eReport shows.
A majority of the survey respondents agreed with statements that “judicial activism” has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are “arrogant, out-of-control and unaccountable.”
….Fifty-six percent of the respondents strongly or somewhat agreed with the opinions expressed in each of two survey statements:
* A U.S. congressman has said, “Judicial activism … seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.” (Twenty-nine percent strongly agreed and 27 percent somewhat agreed.)
* A state governor has said that court opinions should be in line with voters’ values, and judges who repeatedly ignore those values should be impeached. (Twenty-eight percent strongly agreed and 28 percent somewhat agreed.)
Forty-six percent strongly or somewhat agreed with the opinion expressed in a third statement:
* A U.S. congressman has called judges arrogant, out-of-control and unaccountable. (Twenty-one percent strongly agreed and 25 percent somewhat agreed.)
….
Only 30 percent of respondents somewhat or strongly disagreed with the first statement and 32 percent felt the same way about the second statement. The most disagreement was reflected in the responses to the third statement, with which 38 percent took issue.
Link via ConfirmThem.
If you agree with this article, then you should be appalled that a justice like Clarence Thomas overruled legislative acts passed by democratically elected legislators a supreme court high 65% of the time during the past decade with the other members of the conservative wing near the top of the list, while the liberal “activist” judges have been near the bottom of that list.
So I guess the impeachment trial of Clarence Thomas will be getting underway soon.
Where did you find this data? I’d like to see it in more detail.
Btw, the article deals with primarily moral issues, the part of the law where liberal justices are the main judicial activist.
It was from research performed by two Yale Law School professors Paul Gewitz and Chad Golder who wrote an op-ed on their research in the NY Times on July 6th, 2005.
“We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more “liberal” - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
What do you count as moral. Two such pieces of legislation that were struck down by Thomas and Scalia and Co. one dealt with protecting battered women and another dealt with allowing guns in schools. In both cases legislation was written to protect schoolchildren and battered women and it was overturned by the conservative wing of the courts.
I have no problems with striking down laws, or upholding laws even. All of that is beside the point, my point in criticizing liberal justices, is in them taking currently held moral sentiments - sentiments that the public at large disagrees among themselves in - and siding one way or the other with those moral sentiments and interpreting the law based on them.
Things like abortion, gay marriage, and even the death penalty, are all currently moral issues where reasonable people can have varying disagreements on. Yet it is liberal justices who take one side of this debate, and use that belief to interpret the law. Hence the politicization of the court.
Obviously, the conservatiive justices have taken the other side of the debate and interpretred a law the other way. I mentioned two issues that should be pretty non-debatable in protecting battered women and schoolchildren from violence and the conservative justices have determined that these issues are debatable. There is nothing in the constitution that distinguishes moral issues from non-moral issues. Also, the judiciary should not be affected any way by a poll, it is to determine cases individually based upon constitutional interpretation and precedent regardless of popularity.
HP - What is your opinion on the right to die issues (e.g physician assisted suicide, Terry Schiavo etc.). Clearly these are moral issues and in the Oregon case coming before the courts today, there have been two general referendums and numerous acts of the legislature to allow physician assisted suicide. Should the courts overrule these laws?
Michael,
I mentioned two issues that should be pretty non-debatable in protecting battered women and schoolchildren from violence and the conservative justices have determined that these issues are debatable. There is nothing in the constitution that distinguishes moral issues from non-moral issues.
I think we can both agree that protecting battered women and schoolchildren from violence are things that both, liberal justices and conservative justices agree on in principle. So there is no one taking ‘opposite sides’ here. Without knowing anything about the case, I bet these laws violated some greater constitutional principle, and that is why they were struck down. This does not necessarily have to be judicial activism. For example, say that my state of California made a law banning racist statements to be said in public. From now on, nobody could say any racist statement in public, no matter what the avenue and for no reason at all. I think you would agree that that law violates the greater constitutional principle of free speech, and had we been judges, we would strike that law down. Does that mean we took ‘opposing views’ regarding racism and its evils? Of course not, there was a greater constitutional principle at play here. The same could be said about why these laws were struck down.
More importantly, you write,
Also, the judiciary should not be affected any way by a poll, it is to determine cases individually based upon constitutional interpretation and precedent regardless of popularity.
If I had to sum up my views regarding judicial interpretation, it wouldn’t get much different than this. This is really all I had been saying, in other words, constitutional interpretation should have some degree of being time independent. This is in stark contrast to what liberal, particularly the living constitution judicial philosophy proponents would say. They take modern views regarding abortion to get at the privacy clause, they take modern views regarding gays to get at gay marriage, and they take modern views regarding the death penalty to strike down death penalty laws. To take an example of a case where I agree with the outcome, but disagree with how the case was ruled, let’s take the death penalty case, in Roper v. Simmons, where Kennedy used “national consensus” as a basis to strike parts of the death penalty down. The Wall Street Journal writes,
Should we care what the ‘national consensus’ is in deciding Supreme Court cases? Originalist judicial philosophy would say no, liberal living constitution judicial philosophy would say yes. Please separate the outcome of this case from my point above, I personally tend to be against the death penalty, and executing minors more so, but that is not my point here, my point here is how should cases be decided. This is not all that is troubling, the Wall Street Journal also writes about an even more worrisome trend that liberal justices are taking. The WSJ writes,
Were not just talking about ‘national consensus’ anymore, liberal justices are starting to move towards international consensus too.
Regarding the right to die issues, I am torn on those. My conservative side thinks they are taking us in a very dangerous direction, but my libertarian side says that if its consenting adults, who am I to stop them? I don’t know enough about all of the details to say one way or the other, but I plan to do more reading on them, as they become more of an important issue.