Thursday, April 17, 2008

Finding judicial activism

I understand that those of you in Madison will be able to catch Chief Justice Abrahamson on Sly's radio show discussing judicial activism at 10:30. I am going to miss it because I have to be on a panel at the Eastern District Bar Association discussing the impact of the United States Supreme Court's opinion in Bell Atlantic v. Twombly on pleading standards under Rule 8(a) of the Federal Rules of Civil Procedure. Hopefully someone will live blog it.

I have heard the Chief's take on judicial activism. She thinks its a slur. She denies its existence.

But let's look at Justice Stevens concurrence in Baze v. Rees, yesterday's decision holding that lethal injection does not violate the Eight Amendment. Readers of S&S know that I oppose the death penalty, although I do not think that the Constitution forbids it. Stevens expresses the view that the death penalty is unconstitutional. He marshalls (disputed) evidence in support of his critique but, in the end, says that his own judgment is the measure of what the constitution requires:

In sum, just as Justice White ultimately based his conclusion
in Furman on his extensive exposure to countless
cases for which death is the authorized penalty, I have
relied on my own experience in reaching the conclusion
that the imposition of the death penalty represents “the
pointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes.
A penalty with such negligible returns to the State [is]
patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.” Furman, 408 U. S.,
at 312 (White, J., concurring).


Justice Stevens goes on to note that the Court has held otherwise and, under its precedents, the execution methods before the Court are not unconstitutional. Thus, he concurs in the judgment, although presumably he would vote to declare the death penalty unconstitutional were the issue to be presented.

The point is the approach that he takes to interpretation of the Eighth Amendment, essentially making his own sense the sense of the Constitution. Interpretive methods such as this, which maximize judicial authority and discretion, are what we mean when we discuss activism and restraint.

If a bracing rejoinder to this, Paul Cassel recommends Justice Scalia's concurrence in Baze. He directs to the following from Scalia:

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens' experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

12 comments:

Terrence Berres said...

"I have heard the Chief's take on judicial activism. She thinks its a slur. She denies its existence."

The Wisconsin Supreme Court's website has an article on Great Wisconsin judges: Marvin Rosenberry, apostle of administrative law. Justice Rosenberry is quoted as saying "Those who have opposed the creation and extension of administrative tribunals have had the best of the argument on legal and constitutional grounds, but have been obliged to yield to an irresistible social pressure." Perhaps the Chief meant to deny the existence of candid judicial activism.

illusory tenant said...

I'm confused. Who's the "activist," Justice Stevens, who concurred in the judgment of the Court, or Whizzer White?

Dad29 said...

I have to be on a panel at the Eastern District Bar Association discussing the impact of the United States Supreme Court's opinion in Bell Atlantic v. Twombly on pleading standards under Rule 8(a) of the Federal Rules of Civil Procedure. Hopefully someone will live blog it.

Live-blog...hmmmmmm.

Brett said...

Here's the problem with the general concept of "activism": time passes, things change, and the law grows. If these truths were not, then there'd be no need for lawyers, no need for courts, and, certainly, no need for "interpretation." "Activism" when viewed through the lens of "failure to follow prior law" is for that reason fundamentally flawed. If the law just has to be followed, then the path will already have been beaten. But on many, many things, there is no path. What then?

Activism is a black whole that devours all judicial interpretation that some believe to be wrong (unless, of course, that interpretation comes from Scalia (see Bush v. Gore), Prosser (see Maurin v. Hall), Sykes (see pretty much any opinion from 2000-2001, in which she steam rolls over prior precedent because it was "unworkable" or "unsound"), etc.).

Let's face it, in most circumstances, "activism," like statutory interpretation, is in the eyes of the beholder.

Anonymous said...

First I must say that it seemed that this post is close to your heart.

Activism to me is nothing more than when something cannot be past through legislation because it would be unpopular with the people, they wish to get it done through the courts to undermind the people. While many examples exist, abortion is probably the one most widely known.

The conservative view I think is to stick with the original intent of the consitution and laws, whereas, liberals tend to ignor the original intent.

I think the majority of people want judges to go by the original intent of the constituion and the laws and that is why liberal judges will continue to be voted out as they become known. Activism is certainly not a slur but one description of what goes on in our courts.

Brett said...

Anonymous: if there such a thing as an "original intent," whose would it be? The collective drafters of the Constitution? Or just some of them? What about the states that ratified the Constitution? Should we look to the majority of states's views circa 1798? Who would be those state's mouthpiece?

This is my point: "originalism" is nothing more than looking at a hodge-podge history of views, views that never lined up into an "original intent." This is why "activism" is in the eyes of the beholder, for people write history and we're constantly reevaluating it.

Anonymous said...

brett -

the original intent of the Constitution and for laws is not that difficult to determine. Your just presenting the liberal line to make it appear that there is justification for activism.

For example, the constitution was finally ratified because the amendments provided the protection that the colonies were seeking from a federal goverment. However, liberals have taken those amendments after 150 years of proper interpretation and are using them to impose there will on the states. That's activism that continues today, which is not limited to Federal Courts.

The resources are available from very good historians for everyone to read. A judge must do homework if they're to be good judges.

Publius said...

Didn’t judicial activism start with Marbury v. Madison?
The Court interceding in a matter between The Secretary of State and an Appointee?

Some at the time would have said, “The Dred Scott Decision was the Court interjecting itself in a dispute between a man and his Property.”

As a non-Lawyer, I sometimes do not understand how, judicial activism and living constitution, became bad words.

To contradict Anon 12:20: the original intent of the Constitution and for laws IS difficult to determine.

AnotherTosaVoter said...

There are two
main problems with the label "Judicial Activism".

First, the Federalist Papers specifically identied as one role of the judiciary the overturning of laws passed on inflamed passions that were unfair or unwise.

Second, those who complain most about it have no problem with it when it's in their favor. Bush v. Gore is a prime example. The Constitution could not be any more clear that it's up to States to choose Presidential Electors.

Anonymous said...

publius -

Are you saying that original intent should never be used?

If that is what you're saying, then it should go back to the legislature and not fall at the feet of the courts.

Publius said...

Anon 11:21
I am saying original intent is a tough issue which should always temper the discussion.

To Quote: The Federalist Papers: No. 78:

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”

Further:

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

This is a difficult balance. In 1787 the Internet consisted of a rider on horseback. Stem Cell Research consisted on a scientist plucking a plant out of the ground and slicing a sample for study.

But one thing they did have then, which we still have is Human Nature. They believed these “Checks and Balances” would work things out in whatever the future held.

I still do.

originalist v. activist is a worthy case, but trust me, the jury will always be out.

Anonymous said...

publius -

every thing you quoted is a case against activism and for original intent.

Thanks.