Contributor Post Created with Sketch. Dial Down the Anger on Judicial Activism

 

My brief post about Newt Gingrich has brought forth a set of comments, and I think that second post is needed for clarification.  Here are some points.

In reading Gingrich in his 21st Century Contract with America, he is often hopelessly confused about the meaning of the term judicial activism.  Thus he instances Kelo v. City of New London as a case of judicial activism when it is the high point of judicial quietism.  Gingrich talks about how it is that the Court should yield to the Congress and the states, which is of course exactly what they did.  His real beef in the case was that the Court disregarded what he thought was the plain meaning of the words “public use” to let the states go too far.  They could of course rein in their conduct at any time, and since Kelo some states have done that, either by legislation or by practice.  But to be upset with this decision highlights the devotion that Gingrich has towards judicial supremacy.  He wants the Court to protect Ms. Kelo, as do I.

The same point  applies to the decision of Nancy Pelosi and the PPACA.  Member Steven Drexler rightly chides her for being indifferent to the entire question of the constitutionality of this legislation (which, full disclosure, I am working to overturn in the Supreme Court).  But again this is not a case in which there is a yearning for judicial passivity.  It is an insistence that a Congress of limited and enumerated powers not extend its jurisdiction by hook or by crook to cover whatever it wants.  Indeed in a federal system, I cannot see how it could function without the strong sense of judicial review.

Third, in dealing as Gingrich does with the rights of detainees, you do not need judicial supremacy to say that they have a right to a hearing in court.  That is a jurisdiction to resolve individual cases that is conferred on courts through their right to issue habeas corpus.  Legislation that stripped them of that right would entrench on the judicial branch.  Indeed, no matter what view one takes of judicial supremacy, there is never in individual cases the ability of the President or the Congress to disregard the requirements of Due Process.

Fourth, to the mysterious ultra vires, my views on Newdow  are not inconsistent with my general views on standing.  The major concern that I have in that regard is with the inability of anyone to challenge on structural grounds decisions of the government that are indeed ultra vires its powers.  Thus if Newdow, qua citizen, wanted to challenge the adoption of the Pledge of Allegiance by Congress, he should be able to do so, just like any other citizen.  But note that if he won, the only thing that he could insist on is that the government not require the pledge.  It does not prevent other people privately from taking it up.  

In this instance, however, his ambition was to keep his daughter from having to say the pledge in her classroom. That is not a generalized challenge, but a very specific one.  The reason he does not have standing here is that the California family law system gave exclusive custodial rights to the child’s mother, not to him. So we do not have here the situation where no one can challenge the law of general applicability.  Any parent could raise that challenge on behalf of his or her children.  The argument therefore was that Newdow was the wrong man, not that parents cannot seek to insulate their children from the pledge.  Cases like that have been brought on many occasions, including in West Virginia v. Barnett, the flag salute case.

Last, I think that the many readers who expressed their antipathy to what they regarded a sloppy decisions by the Court may well be right in many cases.  I have voiced these vehement criticisms myself.  But the errors run in all directions, and sometimes favor liberal and sometimes conservative causes.  Larry Kramer, the Stanford Dean (and my former student) has written about We the Court, to express the populist anger at the Supreme Court.  I thought, and continue think that his position is overwrought.  It is ironic that Kramer, who is a man of the left, now finds that his rhetoric is used by his ideological opponents.

We need to dial down the animosity, and spend more time dissecting particular decisions for their strengths and weaknesses and less time on global attacks which could unmoor the institutions that we have and put, I fear, something far uglier in their place.  

There are 17 comments.

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  1. Matthew Gilley Inactive

    I’ll take “Histrionics” for two hundred, Alex.

    • #1
    • January 3, 2012, at 4:15 AM PST
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  2. Mike Riscili Inactive
    Mike Riscili Joined in the first year of Ricochet Ricochet Charter Member

    Isn’t the real issue with judicial activism, that the courts are creating rights that are nowhere to be found in the text of the Constitution? The entire idea of a living constitution is repugnant to the idea of limited government and separation of powers as envisioned by the framers.

    The danger is that judges are creating constitutional rights where none are found and then saying that those “rights” cannot be changed because they are constitutional. This is why I cannot understand how judges can be anything but faithful to the text of the Constitution. The Constitution is purposeful in what it says (and what it doesn’t say) because the framers did not want to bind future generations to the values that existed at the time. It was to lay out what government can and cannot do with respect to its citizens. The framers left it to the future legislatures that have the pulse of the people to fill in the gaps through legislation that represented the will of the people.

    I think the judges that find constitutional rights where there clearly are not any are violating their oath to uphold the Constitution.

    • #2
    • January 3, 2012, at 7:19 AM PST
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  3. Crow's Nest Inactive

    Prof. Epstein: There seem to be some instances in this thread, and the previous one, in which we are talking past one another because of varying conceptions of what we define as judicial activism.

    Would it be possible for you to either amend your post (or provide a link) such that a definition of judicial activism is included which you believe best sums up its problematic character?

    For, it seems to me, a court can surely in one sense be described as ‘activist’ if it takes it upon itself to, say, strike down an act of Congress because said law is unconstitutional, or if, say, it reverses a long standing precedent. This can be said to be ‘activist’ in the sense that it was not a display of judicial restraint and deference to a law the legislature had duly passed or to the decision of a previous court, but it is a happy instance of such activism in defense of the Constitution. It was not ‘activist’ in the sense of inventing penumbras and emanations thereof.

    • #3
    • January 3, 2012, at 7:32 AM PST
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  4. Tommy De Seno Contributor
    Richard Epstein: In reading Gingrich in his 21st Century Contract with America, he is often hopelessly confused about the meaning of the term judicial activism. Thus he instances Kelo v. City of New London as a case of judicial activism when it is the high point of judicial quietism.

    Having twice beaten back the evil government Eminent Domainers from turning over our family business to condo developers, I have to disagree with you.

    Prior to Kelo, there were only two times the Court allowed Eminent Domain of private property to turn it over to another private party, and both times the standard used was that there was no free market at play with repect to the property: 1. A neighborhood that was so forlorn it was shown there was no market for its buildings for many years and no future prospect for it, and 2. To break up the Oligarchy that existed in the state of Hawaii.

    The Kelo court removed those extreme standards, and unleashed the power of any 3 volunteer zoning board members to decide a Condo developer is a better neighbor than an established family business.

    Judicial quietism? I’d hate to hear them when they are yelling.

    • #4
    • January 3, 2012, at 7:46 AM PST
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  5. Tommy De Seno Contributor
    Richard Epstein:

    Third, in dealing as Gingrich does with the rights of detainees, you do not need judicial supremacy to say that they have a right to a hearing in court. That is a jurisdiction to resolve individual cases that is conferred on courts through their right to issue habeas corpus. Legislation that stripped them of that right would entrench on the judicial branch. Indeed, no matter what view one takes of judicial supremacy, there is never in individual cases the ability of the President or the Congress to disregard the requirements of Due Process.

    Compare this statement to your position taken in Law Talk #14, where you opined a person on the President’s targeted kill list has the rather interesting due process remedy of turning himself in. Some might argue placing him on the kill list in the frist place may be a disregard of due process rights.

    • #5
    • January 3, 2012, at 7:53 AM PST
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  6. michael kelley Inactive
    Richard Epstein:

    We need to dial down the animosity, and spend more time dissecting particular decisions for their strengths and weaknesses and less time on global attacks which could unmoor the institutions that we have and put, I fear, something far uglier in their place. ·

    Attorney Epstein, you are brilliant but my fear is that something far uglier is already in place.

    The rule of Law is a wonderful thing but what happens in history when it begins to fail? It begins to cover up and hide the machinations of those who would become powerful.

    The same disdain America currently harbors for its Federal Legislature is equally applied to the Judiciary.

    • #6
    • January 3, 2012, at 7:55 AM PST
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  7. The (apathetic) King Prawn Member
    michael kelley

    The rule of Law is a wonderful thing but what happens in history when it begins to fail? It begins to cover up and hide the machinations of those who would become powerful.

    The same disdain America currently harbors for its Federal Legislature is equally applied to the Judiciary. · Jan 2 at 6:55pm

    Agreed entirely. The problems with the court are but symptoms of a larger issue. The problems of the executive and congress also are effects of the same, singular cause. The root of our crisis in all branches is unchecked power. The constitution is proving to be no more than the parchment barrier the anti-federalists feared it would be.

    • #7
    • January 3, 2012, at 8:23 AM PST
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  8. ShellGamer Member
    ShellGamer Joined in the first year of Ricochet Ricochet Charter Member

    Roe v. Wade would have been overturned by now if Reagan had made a better appointment than Justice Kennedy or Bush a better appointment than Justice Souter (and how could he not have). Planned Parenthood v. Casey is the most craven decision of the last century. A consistent application of its principles would have left Plessy v. Ferguson the law of the land.

    But there is no substitute for winning the political battle so we can appoint justices who are brave enough to overturn decisions that have no basis in the Constitution. Any shortcut we try to create around this will allow liberals to do far more mischief than they already have.

    • #8
    • January 3, 2012, at 8:27 AM PST
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  9. Terry Mott Member
    Mike Riscili: Isn’t the real issue with judicial activism, that the courts are creating rights that are nowhere to be found in the text of the Constitution? The entire idea of a living constitution is repugnant to the idea of limited government and separation of powers as envisioned by the framers.

    To my mind, this is only one side of the coin. The other is allowing laws to stand that plainly overstep congress’ constitutional authority. This, I take it, is what Prof. Epstein means by “judicial quietism”. The Kelo decision is a good example, as are the decades where the courts mostly refused to defend the 2nd Amendment.

    The charge of “judicial activism” is seldom used consistently. It’s mainly just a political slogan meaning “any decision that my political base doesn’t like.”

    • #9
    • January 3, 2012, at 9:15 AM PST
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  10. Michael Tee Inactive

    Whoa. Wait.

    Newt Gingrich started a national conversation about the role of the judiciary in U.S. politics?

    How did he manage this between his adulterous liasons?

    At least one of the candidates is asking the tough questions. It is something extraordinary that a Presidential candidate is bringing up serious issues, tough questions, and starting a national dialogue.

    We’d much rather discuss who Newt Gingrich took pictures with and with what woman he was with in 2008. How shallow.

    The fact alone that you feel the need to address this and the fact that other legal scholars disagree with you is worthy or praise, not derision. In that linked article, Professor Dorf indicates that Newt Gingrich is right about the question of judicial supremacy, but finds him wrong on his willingness to turn back the clock (IMO, the stupid, lazy argument of stare decisis which legal scholars rely as a crutch, Justice Thomas excepted.).

    ETA: Judicial scholars LOVE Judicial Supremacy because it makes attorneys important. How else will they sell the $100K+ “education” to students “who want to change the world” without an all-powerful Judiciary? How will they feel “empowered”?

    • #10
    • January 3, 2012, at 9:24 AM PST
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  11. ShellGamer Member
    ShellGamer Joined in the first year of Ricochet Ricochet Charter Member

    It’s ironic to see posts about the need for checks on the judiciary also attacking the principle of stare decisis, which serves as a check on judicial power. Are you really advocating that every judge has the right to interpret the law de novo, without regard to how it has been applied by other courts to similar cases. Do we really want a system where those seeking legal advice are told “Beats me; depends on the judge and how he feels that day?” (Which is already too often true.)

    I made this point in an earlier post, but an inherent problem with a written constitution is how do you make each branch abide by it. The judiciary strikes me as the least worst alternative. Or would we prefer to see a Democratic Congress conduct show trials (or impeachments) of justices who voted in favor of Citizens United?

    • #11
    • January 3, 2012, at 10:18 AM PST
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  12. Larry Koler Inactive
    ShellGamer: It’s ironic to see posts about the need for checks on the judiciary also attacking the principle of stare decisis, which serves as a check on judicial power. Are you really advocating that every judge has the right to interpret the law de novo, without regard to how it has been applied by other courts to similar cases. Do we really want a system where those seeking legal advice are told “Beats me; depends on the judge and how he feels that day?” (Which is already too often true.)

    I’d love to hear Prof Epstein explain Stare Decisis in such a way that he could convince me that it should overcome a justice’s conviction that an issue in question is Constitutionally invalid.

    I understand the pedestrian view that we need continuity and stability but when does Roe get overturned?

    • #12
    • January 3, 2012, at 10:27 AM PST
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  13. The Cloaked Gaijin Member

    The Kelo v. City of New London case wasn’t judicial activism?

    This is what I don’t like about lawyers, and the politicians who write the titles for federal bills, they turn everything upside down until everything has the opposite meaning of what is the correct meaning to common everyday normal people.

    Highly-respected conservative judge Laurence Silberman recently argued that there isn’t a Constitutional case against President Obama’s law that every American be forced to buy health care. And where does this magic money come from? Hasn’t anyone heard of the Thirteenth Amendment? I suppose Judge Silberman doesn’t think there’s anything wrong with forcing voters to pay an exorbitant tax for the honor of voting either.

    • #13
    • January 3, 2012, at 11:10 AM PST
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  14. James Of England Moderator
    James Of England Joined in the first year of Ricochet Ricochet Charter Member

    Just thought I’d drop a word of thanks for this post in which there is not a word that I know I disagree with (although I haven’t followed the link, so maybe I disagree with you about Newdow). This, not a frothing Paul Newsletter, is what real defense of the Constitution looks like.

    • #14
    • January 4, 2012, at 3:59 AM PST
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  15. Michael Tee Inactive
    ShellGamer: It’s ironic to see posts about the need for checks on the judiciary also attacking the principle of stare decisis. Are you advocating that every judge has the right to interpret the law de novo, without regard to other courts to similar cases. Do we want a system where those are told “Beats me; depends on the judge and how he feels that day?” (Which is already too often true.)

    This is the worst type of legal argumentation as it starts from the postmodern supposition that there is no objective truth. (Plus, you undercut your argument with the last sentence.) There are actual words written in the Constitution. Even better, there’s a rationale for those words both in the Federalist Papers in and letters of Madison and Morris. Legal “scholars” have since tried to stretch what isn’t written down into their own policy preferences. The Constitution is purposefully silent on many issues. It is why they wrote the Ninth and Tenth Amendment (which Lincoln made moot).

    Judges have forever been trying to give a voice to a document that was mute.

    In a just world stare decisis would have no reason to exist.

    • #15
    • January 4, 2012, at 6:00 AM PST
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  16. ShellGamer Member
    ShellGamer Joined in the first year of Ricochet Ricochet Charter Member

    It is an act of humility, not post-modern nihilism, to recognize that you may not fully understand the truth, no matter how objective. The pedigree goes back at least to Socrates.

    I’m a staunch orginalist. But I recognize that the application of the words to particular facts requires interpretation, and consistency (insofar as like cases are treated in a like matter) is fundamental to justice. Thus, it is appropriate to defer to the interpretations of prior decisions.

    This presupposes that the prior decisions attempted to actually interpret the words in the Constitution. Where a decision fabricates a “right” from whole cloth (such as Griswold or Roe, although one of the opinions in Roe appealed to your vaunted 10th amendment) no deference is warranted, and the decision should be overturned. But it needs to be overturned by the judiciary, not the Congress.

    • #16
    • January 4, 2012, at 8:44 AM PST
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  17. Profile Photo Member

    Hi Richard. Something like the title of your post occurred to me when I read your first “analysis” of Newt’s positions. I’m not sure what’s happening but I sense divided loyalties, or perhaps a blind spot on judicial authority among legal experts. Still, what you write here deals more directly and effectively with the actual issues. I’m afraid it’s start-of-term for me so I am only able to skim your arguments and so have nothing to say (it’s above my pay grade anyway) on that matter, but I am dropping this note to register my approval of the better tone and genuine wrangling over the issues.

    I’ll revisit your arguments about illegal combatants facing trial in civilian courts (if I haven’t misjudged your position) another time; skimming them hasn’t moved me at all. My mind jumped to the issue of Somali pirates and Western reluctance to arrest for fear of them jockeying for immigrant and legal status on western soil. It seems legal/political positions that make such roads possible leave open only medieval options such as “blow the buggers out of water and be done with it.”

    • #17
    • January 4, 2012, at 9:43 AM PST
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