An insight into judicial activism

[This is one of my recent posts that was pretty much unavailable due to Blogger troubles, so I’m republishing it, slightly edited, here.]

Apparently Justice Ginsburg, while in South Africa, was heaping disrespect on the American Constitution. (What is it lately with American public figures going abroad to denigrate America? Think Al Gore here.) Anyway, as noted in this Power Line post about Justice Ginsburg she summarized her whole judicial philosophy this way:

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”

John, at PowerLine, comes back with the perfect response:

This is, to put it politely, nonsense. In our system of government, the courts are not called on to determine what “basic fairness governing relationships between the governors and the governed” requires. For legal purposes, issues of “basic fairness” were decided when the Constitution was authored and approved by the initial thirteen states, and when the document has been amended over the subsequent centuries.

The real issue here is: what is the Constitution? Justice Scalia has famously noted that the Constitution is a legal document which, like all legal documents, says some things and does not say others. In Justice Ginsburg’s view the Constitution is, on the contrary, a roving charter for nine individuals to decide what “basic fairness” requires. It should hardly be necessary to point out that the former understanding, which was universal until quite recently, is a charter of freedom, inasmuch as the people’s representatives can vote on amendments. Conversely, the “basic fairness” approach is a form of tyranny in which a small elite can impose its policy preferences on the rest of us.

It is also utterly unworkable. There is a reason why people reduce legal documents to writing: it’s the only way to know what the deal is. Under Justice Ginsburg’s approach, the “law” is ineffable. There is no way to know from one day to the next what it might be.

We can only wait for the day when Justice Ginsburg decides that she’d rather lie in the sun in her backyard and catch a few “Z’s”, than slog off to the Court every day. And we can only hope that we reaches this conclusion in the next two years.

By the way, I’ve learned that Justice Ginsburg has been on the receiving end of threats, which apparently triggered this portion of her speech. While I don’t condone, and never would condone, any threats, I think the threats and her speech are apples and oranges. That is, the fact that fringe people both support strict Constructionism and threaten Supreme Court justices has nothing to do with the merits either of judicial activism or strict Constructionism. I think the former is shoddy thinking and the latter the only way to run a country so that you don’t have demagogic rule by judges. And I think threatening Supreme Court justices is a criminal act, and nothing to do with this discussion.

UPDATE: If you want to know how judges who are not judicial activitists view their responsibilities on the bench, and if you want to understand why their viewpoint is more consistent with the role the Constitution plays in America, read this article.

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  • Monkey InChief

    I can never figure out why so called conservatives are not bothered by the idea that Constitution is being used a roving charter for 9 individuals to decide the government has unlimited control over our personal lives. The United States of America was supposed to be a government limited powers. John @ Powerline like many other conservatives is upset (he cites the Lawrence decision in his comments) about the government not being able to outlaw homosexual sex. I suppose you conservatives would have no constitutional problem with a state outlawing heterosexual sex? Since “basic fairness” is an evil concept and the Constitution does explicitly guarantee a right to heterosexual sex, I suppose you all worried about the homosexual agenda outlawing your lifestyle.

  • Ymarsakar

    Under Justice Ginsburg’s approach, the “law” is ineffable. There is no way to know from one day to the next what it might be.

    Some points to be mentioned.

    Kelo Act destroy private property and conservatives are fighting against the Kelo Act and all the judges that voted for it.

    The liberals fight to protect reproductive rights, while nominating and electing judges that vote to steal your private property.

    Some people need to understand that private property is a lot more important than recreational sex.

    But then they would have to understand the basic human rights of liberty, life, and the pursuit of happiness.

  • http://fenfe prabha

    Even though there are many amny legislations starting from the Constitutiion in our courntry India, i find that the courts never followow these laws to the letter and spirit but give judgments as per theier feelings, experiences in life , coupled with the impressiion created by the parties to a case. I am also a lawyer practicing in India since the past twentythree years and would like to share my feelings in future.Hope you like it.

  • http://fenfe prabha

    judicial activism in India though started off with the true feelings towards the struggling and downtrodden in the society by a supreme court Justice, now many vested interests have misused this branch of law .This misuse has inturn changed the aattitude of judges about public ;interest litigations. Many times as I have seen, some judges even try to take undue advantage of a ppublic interest litigation pending before them for their own publicity, promotions and what not?

  • Zhombre

    I’ve heard it said that when a man or woman puts on those robes and ascends to the bench, there is often a corresponding enlargement of ego. The concept of judicial restraint IMHO is a necessary tonic against that all too human urge to assume the at times parochial contents of one’s own mind have universal application.