Plan B Forum

For anyone following this story, the Supreme Court of Wisconsin has basically issued a "smackdown" to the absquatulating legislators and the local court babe who tried to prevent the law from going into effect. Shame on her.

Read it here: http://www.wicourts.gov/sc/opinion/Disp ... eqNo=66078

One might note that the conclusion of this story has gone virtually unnoticed in the MSM - totally unreported in Pittsburgh Pravda (aka the "Post-Gazette").

Final Score: The Rule of Law 1 - Judicial Activism 0.

Rule by Hissy Fit is no way to run a state.

unfair. I for one like the post gazette, in fact, my last restore job truck is in there

I also "like" the Post-Gazette, and have been a daily subscriber since 1971.

However, their editorial position on most issues is indistinguishable from that of the Socialist Workers' Party of America (if there is such a thing).

I heard the story on National Public Radio...I guess that proves they're *NOT* liberal after all--right, Dave?

(FWIW, the "court babe" who issued the injunction against implementation of the law did so on the grounds that in their haste to pass this law the Republicans violated a state Open Meetings Law, a position which seems at least arguable--even though in the end the Wisc. Supreme Court didn't agree with that argument. Just because you disagree with a ruling--or just because a ruling is overturned on appeal--doesn't qualify it as a "hissy fit"...or is it a "hissy fit" in your view just because the judge happens to be female?)

My point on the media was that this story was front page news for weeks, yet the "payoff" is barely mentioned.

Just about every preposterous ruling ever made by an activist judge can be justified by some sort of twisted logic, misapplication of the law, and ignoring what doesn't suit the predilections of the judge. As a general proposition, the more preposterous the ruling is, the longer the opinion.

This woman-judge was clearly and obviously legislating from the bench, as the SC's opinion details. Further, the case was brought in her court because the plaintiffs knew that that's what she would do. Though it would be difficult to craft a "scientific" survey of the issue, it certainly seems by scanning judicial news reports that female judges are in recent years the main culprits of this sort of illegality-in-the-name-of-the-law.

WTF is an "activist judge"?

An activist judge is one who issues a ruling with which conservatives disagree.

They like to pretend it's about judges who "make new law", "usurp the role of the legislature", but they never complain about it when judges who think like them twist the law like a pretzel in order to achieve a result favorable to conservatives.

Ok, so it's a judge who twists the law to a political end, yes? And this is actually legal and a recognised phenomena? And is allowed?

Fuck me pink....

Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1]:1 The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers

In recent history it has been finding the smallest of nuances in the ether of a law as oppose to just reading the thing, or using laws from other countries to interpret one from here to support your own ends.

Ok, so it's a judge who twists the law to a political end, yes? And this is actually legal and a recognised phenomena? And is allowed?

Well it wasn't in this case. But if the leftest Kloppy would have won the recent election for the higher court, things could have turned out different.

liberty1 wrote:using laws from other countries to interpret one from here to support your own ends

You mean like conservative judges did in Bowers v. Hardwick to uphold sodomy laws in 1986, and then cried foul when the majority in Lawrence v. Texas in 2003 referred back to that ruling to note that world opinion had changed?

I'm not familar with that, but yes, world opinion or public opinion of any kind should have nothing to do with it. If you want a different law, use the process.

Perhaps you could bring up some examples of where you claim that foreign law has actually had an impact on the outcome of a case, since you apparently felt it important enough to specifically mention as a form of "judicial activism".

I'm an engineer, not a lawyer and don't keep up with that stuff like you apparently do. NBut I know it's been done several times by the SCOTUS from accounts of opinions I've read over the last 5 or 6 years.

Translation: I'm making shit up.

A quick search without reading any of the articles.

http://www.huffingtonpost.com/2010/04/0 ... 21265.html

http://www.usatoday.com/news/washington ... usat_x.htm

http://www.nytimes.com/2009/04/12/us/12ginsburg.html

Who's making shit up!

The first and third cites don't say anything resembling that U.S. judges have used foreign law to make their decisions.

The second cite was one I already brought up. Justice White, writing the majority opinion in Bowers v. Hardwick, went on a tour of world history, citing law from Babylonia and Rome and medieval Europe, etc., etc., etc., to justify why sodomy laws should be upheld. In overturning that decision, Justice Kennedy, when writing for the majority in Lawrence v. Texas, had no choice but to address the arguments made in Bowers and explain why they were no longer relevant (if they ever were). And yet Kennedy was the one accused of relying on foreign law to write his ruling, when he actually did no such thing.

One rule for so-called liberals, another for conservatives, just as I said.

And the answer to who's making shit up remains you.

Gob wrote:WTF is an "activist judge"?

Any judge who makes a decision displeasing to nutcase right-wingers.

yrs,
rubato

Gob wrote:Ok, so it's a judge who twists the law to a political end, yes? And this is actually legal and a recognised phenomena? And is allowed?

Fuck me pink....

In your country as well.

yrs,
rubato

Scooter is pretty much right about the use of foreign law by US courts to interpret US law. ("Pretty much" because there are details that differ slightly from his description, but those details are, for most purposes, trivial.)

The best way to understand judicial activism is to understand its contrary: judicial restraint. (It started out as "judicial self-restraint," but we have conveniently shortened the term.)

It has nothing to do with political persuasions. There have been, and still are, left-wing judicial activists. There have been, and still are, right-wing judicial activists. There have been, and still are, left-wing practicioners of judicial restraint. (Judicial restraintists?) There have been, and still are, right-wing practicioners of judicial restraint.

Judicial restraint has numerous components. Some of those are difficult to pin down precisely, and both their content and their application are constant sources of controversy.

But some of them have become basic principles. A court should not decide a dispute unless there is some concrete injury for which the court's decision can somehow provide some redress. That idea manifests itself in various legal doctrines.

One is "standing": If you are not a person who has been or probably will be injured by some behavior, you have no right to bring a suit about that behavior.

Another is "ripeness": If the dispute which you want a court to decide has not yet arisen, you have no right to bring suit about it. (That doctrine is considerably mitigated by what is called "declaratory relief": For example, the person you wish to sue has not yet breached the contract, but he or she has announced her intention to do so. Where to draw that line is one of many complicated issues.)

Another is "mootness": If the dispute is already over, and if nothing which the court can order will change the result, then you have no right to bring suit about that dispute.

Another central principle of judicial restraint -- one that, in the end, is probably more important than the concrete-injury principle -- is the idea of deciding a case on the narrowest ground available. Someone brings a case in which he or she claims that a particular thing that the government is doing violates a statute and also violates that person's constitutional rights. If the court can decide the case on the basis of the statutory claim, it should do so, and it should refrain from making a decision on the constitutional claim(s).

An example of that is the question of statistical sampling by the Census Bureau in determining the populations of the States for the purpose of allocating seats in the House of Representatives. That was challenged on two grounds: one, that the statute under which the Census Bureau was operating did not empower it to use statistical sampling; the other, that the Constitution requires an "actual Enumeration," so statistical sampling is unconstitutional.

The Court decided -- in my opinion, correctly -- that the relevant statute did not empower the Census Bureau to use statistical sampling for that purpose. Therefore, the Court had no need to decide, and did not decide, whether the use of statistical sampling would be unconstitutional.

In other words: "Congress did not authorize the Census Bureau to use statistical sampling. Whether Congress could authorize the Census Bureau to use statistical sampling? We don't need to decide that question today. So we won't."

Another core idea of judicial restraint is "deference". How does a court review the action of another branch of the government? Does it say "Within the following very wide boundaries, Congress can do what it wants"? That is giving Congress great deference. Or does it say "The Constitution requires X, so X is it, no matter what Congress thinks"? That is giving Congress little or no deference. And, of course, there are innumerable gradations in between.

In general, the more explicit the Constitution is on a certain subject, the less deference the Court gives to the legislative or executive branch; and the less explicit the Constitution is on a certain subject, the more deference the Court gives to the legislative or executive branch. But figuring out any of that requires figuring out what the Constitution says on a certain subject, and except in the dizzyingly obvious cases, that is not an easy task.

Hope that helps. A little. Maybe.

One rule for so-called liberals, another for conservatives, just as I said.

Where did I say anything about conservatives versus leftists?

As Andrew points out I believe it happens both ways in different courts arounfd the country.