Tuesday, September 29, 2009

Activist judges

Barack Obama has an opportunity to fill a great number of vacancies on the court. And, as is typical of Obama, he's looking to fill them with non-ideological pragmatists (much like himself). Sotomayor is a great example of that brand of judge -- and one you would expect to not be too difficult to confirm in our new warm and fuzzy post-partisan era.

Alas, one of the few things Republicans in Congress seem to be able to do is to block judicial and administrative appointments, using ideological arguments (charges of "racism" against a Latina woman from the Bronx comes to mind) against non-ideological targets. The one thing that still riles up the base of both parties is judicial appointments, and the Republican Party right now is nothing without their extreme base.

Jeffrey Toobin looks at
Obama's view of the courts, most notably his realization that progressive causes can no longer rely on the courts, but must make gains legislatively, unlike during the Civil Rights era. In fact, Toobin writes, all Obama is asking of the courts, the Supreme Court especially, is that they stay away from his legislative agenda. He wants things to more or less stay the way they are -- the opposite of "activist judges," the charge conservatives usually make on Democratic judicial choices. The phrase still works the base up to a frenzy.

But it's a false charge because, on the contrary, it's the Right that is now looking to the courts for redress and it's judges from the conservative spectrum that are the activists now, similar to the 1930s when activist judges tried to derail the New Deal.

In a way, Democratic Constitutionalism goes back to the origin of the activism-vs.-restraint debate. In the late nineteenth century, a conservative majority on the Supreme Court embraced a kind of activism when it struck down several state and local measures intended to regulate the economy or to protect workers. In the nineteen-thirties, a conservative majority on the Supreme Court struck down several early New Deal measures; in these cases, the Justices ruled that Congress lacked the constitutional authority to launch such federal initiatives as the National Recovery Administration. Franklin D. Roosevelt initially responded to these defeats with his infamous court-packing plan, but in time he was able to appoint Justices who deferred to legislative judgments about how best to address the Depression. In other words, in that era liberals believed in restraint, and conservatives were the activists. (That flipped in the Warren era.) Notably, when Sotomayor was asked her favorite Supreme Court Justice, she named Benjamin Cardozo, who was a leader in fighting the conservative activism of the thirties on the Court.

“What you’ll get with Obama is basically Carolene Products—‘Leave me alone on economic issues and protect me on civil rights,’ ” Richard Epstein, the conservative legal scholar who was interim dean of the Chicago Law School when Obama taught there, said. Carolene Products was a 1938 decision, involving skim milk spiked with non-milk fat, in which the Court set up a structure that would shape constitutional law for the next several generations. The Justices gave the elected branches a more or less free hand on economic issues but exercised greater scrutiny of measures that affected minorities. “Obama has nothing much he wants from the courts,” Epstein told me. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”

As David Strauss observed, “Fighting over the courts is not going to be a high-priority issue for Obama or the Democratic coalition. The Republican coalition cares a lot more about it at this point, because they want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats. The Democratic agenda is more democratically focussed on legislation.”

In recent years, thirties-style conservative judicial activism, targeting federal legislation, has been returning to the Court. As Cass Sunstein, a former professor at Harvard Law School, writes in the “2020” collection, “Increasingly, conservatives have been drawn to ‘movement judges’—judges with no interest in judicial restraint, with a willingness to rule broadly and a demonstrated willingness to strike down the acts of Congress and state governments. Movement judges have an agenda, which, as it happens, overlaps a great deal with the extreme wing of the Republican Party.” Sunstein notes that the Rehnquist Court struck down more than three dozen federal enactments between 1995 and 2004—“a record of aggressiveness against the national legislature that is unequaled in the nation’s history.”


Over time FDR was able to reconstitute the court in a more conservative fashion. Let's hope Obama can replicate that history, but with relative youngsters in the activist majority, it's a long shot.

UPDATED to fix the usual suspects of typos

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1 Comments:

Anonymous Anonymous said...

Ours is an envionment where evil is perceived to be rewarded while good is punished. As with everything the Gods have a reason for creating this perception::::
People who fall on the good side of the good/evil scale have more favor, and when they do something wrong the Gods punish them BECAUSE THEY WANT THEM TO LEARN. The Gods want them to receive this feedback in hope they make corrections and begin to behave appropriately. The Gods DON'T like evil and refuse to grant this feedback.
EVERYBODY pays for what they do wrong, only evil people must wait until their next life before they will experience the wrath of the Gods, manifested in their reincarnation as a lower form of life into environments with increased/enhanced temptations.
Sadly, this allows the Gods to position this perception of evil rewarded as temptation, one which they use as an EXTREMELY effective corruptor.

Both Africa and the Medittereanean are regions which have sexual issues. This is a sign of morbid disfavor once you understand that females are the God's favored gender. Muhammad's (Mohammed's) polygamy halfway through his life as a prophet was preditory. Now a huge percentage of Muslims believes in male superiority and that the abuse of women is God's will. Female genital mutilation is still practiced in Africa. Black misogyny is the most eggregious example in the recent past.
Black member size is temptation to a predisposed population.
The patriarchal cancer spread throughout Europe because of Christianity, of which the majority of policy makers were Italian men. Expect the largest landowner in Europe and the continent's original superpower also played a major role in African slavery.

Militancy in Africa is consistant with the Iraqi example, as was slavery and the KKK here in America:::Fear enforces proper behavior. Without it we see what happens as a result of gross/morbid disfavor:::::AIDS, crack babies, dead young men in gangland retaliation killings. This is the purpose behind many black's historical tendancy towards resistance.
The same principle was true in Europe and throughout the world for centuries:::People whom lived under iron fists were conditioned to think the right way. As a result they experienced higher numbers of children accend into heaven because they were taught to think and behave appropriately, which they passed on to their children. Our preditory envionment of "freedom" was the primary purpose the Gods had when implimenting this strategy that is the United States, one which they used to spred the cancer of democracy and westernization throughout the world. And the Gods use this tool that is America to prey on the disfavored both at home and abroad:::Much like the ghetto, America in general experiences a heightened level of temptation due to the people's disfavor.

Even the Old Testiment is not to be taken literally, but the Gods do offer clues throughout to help the disfavored:::The apple is a tool of temptation used to corrupt Adam and Eve and cast them out of the Garden of Eden.
There is another lesson to be learned from this passage, and it is quite similar to the vailing issue and the discourse over women's attire which ultimately died in the 70s:::Women are responsible for and control the fate of mankind.

Think about what I say. Consider what I teach. Society is going to become disturbingly ugly as we approach the Apocalypse due to spiralling, runaway disfavor.
I do not know when this will occurr, but it is the God's way to grant some time before they end on Planet Earth.
Make the decision to always be good and never look back. Until you do this technology will employ tactics to test your resolve:::Ridicule, beligerance, doubt and refusal to abandon what people perceive to be their "investment".
Pray daily. Think appropriately. Too many are confident, unaware of the God's awesome powers or their status as antients. Others may fall prey to their positioning.
Be humbled, God-fearing and beware of the God's temptations, for everyone is tested to evaluate their worthiness.
Search rest

11:51 PM  

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