09-22-2020, 10:11 AM
(09-22-2020, 09:42 AM)Mickeypoo Wrote: So I am honestly trying to learn more about this. Can you please give me an example of what conservative activism would look like? Can you give me an example of a case?
One of the best pieces of writing I have read on this was "Do Liberals and Conservatives Differ in Judicial Activism?" by Frank Easterbrook. Here is the link, but I don't know if it will work without subscription access: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2135&context=journal_articles
There is also, from the same publication, "Beyond Judicial Activism and Restraint" by Richard Epstein. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2232&context=journal_articles
Easterbrook actually goes into cases and decisions by SCOTUS, analyzing them based on their "judicial activism" and finds that it's at issue on both sides. But the important thing to note from both articles is that they point out the almost useless idea of the term to begin with. Easterbrook puts it flat out there by saying:
Quote:The term "activism" thus used is empty, a mask for a substantive position. "Activism" remains, however, a term of opprobrium. Everyone wants to appropriate and apply the word so that his favored approach is sound and its opposite "activist." Then "activism" just means Judges Behaving Badly-and each person fills in a different definition of "badly." Many of the papers prepared for this symposium are aware of the problem, denounce any definition of "activism" that just equates to "wrong decisions, as I see them"-and then offer a definition of "activism" that equates, once again, to Judges Behaving Badly.
He talks towards the end about his analysis and wraps up with this:
Quote:By my standard, all nine are activist. That all nine subscribe to in principle, and use in practice, the noxious canon of constitutional doubt is proof enough of this. Each of the nine declared more federal statutes unconstitutional in each Term I examined than John Marshall did in a 34-year career. And there does not appear to be any significant difference on the "activism" scale between liberals and conservatives.
Perhaps my findings show that even an objective definition of activism does not capture much of value. But if that is the conclusion, then I will be happy to close this conference with a plea for the word's abolition.
He does provide an appendix of the cases used at the end, so I won't rehash them here. I also just want to point out that this is a Federal Appeals Court Judge appointed by Ronald Reagan and is a rather conservative jurist.
"A great democracy has got to be progressive, or it will soon cease to be either great or a democracy..." - TR
"The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." - FDR
"The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." - FDR
