The Wisconsin Teachers' Union Story

[dgs49]

Just for the hell of it Gob, I'll give you a quick review of a very high-profile example of judicial activism in the U.S.

Many years ago in a state called Connecticut (a state with a large Roman Catholic population) the legislators passed a law that prohibited the use of "artificial birth control," which at the time was colloquially referred to as "The Pill." The law applied to everyone, married or single.

It was manifestly an unwise and short-sighted law, and the police did not enforce it.

However, a group of leftists, for their own entertainment, schemed to have a married couple break the law, be arrested, and convicted of using artificial birth control. When convicted, they appealed the decision through the Connecticut courts and ultimately to the United States Supreme Court. I believe the case was captioned, "Griswold v. Connecticut"; Andrew will correct me if I'm wrong.

Well.

The appeal was in fact on the point that the law was stupid and offensive, but in the U.S., that is not enough for the USSC to overturn it. The complaint has to be based on either a misapplication of the law to the facts, or on some "Constitutional" principle. Unfortunately, there is nothing in the U.S. Constitution about birth control or stupid laws, so the Liberal Wing of the USSC decided that the only way to overturn this stupid law was to CREATE a "constitutional" right of privacy, then declare that this stupid law VIOLATED that fictitious right.

The opinion is a cornucopia of sophistry, talking about emanations and penumbras and like that there - basically saying that although the Constitution doesn't exactly MENTION a right of privacy, if you read between the lines, it's in there - "Take our word for it."

This is the work of "Activist Judges." The essence of their "craft" is to make lovely, convoluted, artistic arguments that basically turn the Constitution upside down, in order to reach a desired result in a case.

It is axiomatic, however, in the law, that "Hard cases make bad law."

Now, having created this previously-unknown "Right of Privacy," the figurative descendants of the original Supreme Court judges have been able to outlaw and overturn all sorts of laws that, for the first 200 or so years of our republic, everyone thought were all just peachy. Most poignantly (no play on words intended), the USSC found that, based on this Right of Privacy, the States could not prevent women from getting an abortion. They found that the States could not proscribe buggery and other sorts of sodomy, whether by husband & wife, or casual strangers meeting in a San Francisco bathhouse.

But the founding principles of this Country dictate that such decisions should be made by the legislatures - by people who are elected by the people - and not in the courts, where the "legislators" are appointed for life and don't have to care what the People think. And indeed, it is likely that if the judges had simply done their job and ruled that, "This here law is dumb as shit, but we can't overturn it," the legislatures would, in due course, have created laws that reflected the consensus views of the People. When the USSC ruled in 1973 that abortion laws were "unconstitutional," there was already a mounting surge of states who were legalizing abortion, and it would have been legal and probably convenient by the end of the '80's. But the Court's stupidity and usurpation of the legislative function has resulted in a never-ending battle over the issue, and subjected every fucking politician who runs for every office higher than dog-catcher to affirm, one way or another, that he would or wouldn't ever appoint a judge who supports (or opposes) abortion, as the case may be.

And the beat goes on.

[Guinevere]

Well, the case Dave mentions is Griswold v. Connecticut, but that's about the only thing he got right. He misstates the case, the facts, the analysis, and of most import, he misstates what the role of judges and courts in this country. Under Dave's view of the world, the courts would be impotent functionaries. The real role of courts is to keep the legislatures in check, so that they do not pass and then try to enforce laws which are contrary to our constitutional protections. That's been their role here since 1787, and was made crystal clear in the 1803 case of Marbury v. Madison (a case Dave always ignores), where the young court clarified the concept of judicial review.

And btw, this concept didn't start with the Griswold decision, or the Marbury decision, or even the US Constitution, but is a concept with roots in ancient English law.

One more point, Potter Stewart one of the TWO dissenters in the Griswold decision (so, please, don't think it was a particularly close call), changed his mind and was one of the great supporters of the Roe decision.

[Andrew D]

If one really wants to understand judicial activism, one must transcend petty partisanism.

The most activist Supreme Court in American history was the Court of what is known as "the Lochner era". It was in reaction to that Court's radical activism that the term "judicial restraint" first came into use by the Supreme Court.

That radically activist Court was a right-wing Court.

There have been, and there still are, activist judges of all political persuasions. Getting wrapped up in political partisanship is a sure way to end up not understanding the issues involved at all.

[Gob]

Isn't this a good argument for getting rid of your obsession for electing everyone to posts?

Most UK judicial appointments are now organised by the Judicial Appointments Commission, designed to make sure candidates are appointed on merit.

See their overview here: http://jac.judiciary.gov.uk/about-jac/352.htm

[Guinevere]

We don't elect federal court judges, so all of these decisions were made by judges who had lifetime appointments.

Some states do elect trial court level judges, but I don't think there are any appellate court judges that are elected (but I would not swear by that fact). Regardless, I find electing judges abhorrent.

[Gob]

Cheers for that Guin, I was under the impression that you elected all your judges (and anyone down to your binmen for that matter! )

[Andrew D]

In California, we have an odd system for appellate (including Supreme Court) justices. (We call all the appellate ones justices.)

We do not elect them. We, if we choose to, unelect them.

Our ballots ask us whether we want a particular justice to remain on the bench or not. There are no other candidates. We are not voting between the person who is there now and someone else. We are voting between the person who is there now and ... well ... whoever the next product of our appointment system might turn out to be.

So we have what are called "retention elections". Apparently, some twenty States have some version or other of retention elections. There is an informative article on the subject here.

[dgs49]

IN Pennsylvania, ALL appellate court judges are elected, as are Common Pleas Court (trial court) judges and magistrates down to the lowest level. Supreme court justices are up for retention by the voters every ten years.

One might note that neither of the persons calling themselves guin or andrew mentioned any errors in what I said. They disagree in principle.

Guin (like all liberals) is very distressed by the proposition that appellate courts' roles are simply to review cases in light of the United States Constitution, as it exists - not the constitution they think OUGHT to exist, or the constitution that their figurative cousins dreamed up five cases ago.

I repeat for those whose hearing is a little faint: The Right of Privacy, as articulated by the United States Supreme Court in Griswold is MADE-UP LAW. It does not exist. By no rational thought process can one look at the US constitution, read it thoroughly, and find a right of privacy. Thus, every single finding by the USSC that is based on this phony "right" is bogus.

And to understand what Andrew means by right-wing activist courts, you need to understand that when a court looks at a case where a previous court has ruled based on phony grounds such as the so-called right of privacy, and they overturn that finding, they are being "activist."

So, in Andrew's mind, when a court follows the constitution as it is written, it is an activist court if some prior court has gotten it wrong. They are OBLIGED to stay with the incorrect principle, even if it obviously contradicts the words and clear meaning of the Constitution.

This is why, in Senate hearings to confirm Republican appointees, the Democrats are always badgering the nominees to see if they will PROMISE never to overturn a SACRED PRECEDENT. They know that there are scores of phony precedents out there - all imposing the Liberal point of view - that would be extremely vulnerable to overtuning if the judges of the future have the temerity to actually read the fucking constitution and take it seriously.

[Andrew D]

And to understand what Andrew means by right-wing activist courts, you need to understand that when a court looks at a case where a previous court has ruled based on phony grounds such as the so-called right of privacy, and they overturn that finding, they are being "activist."

So, in Andrew's mind, when a court follows the constitution as it is written, it is an activist court if some prior court has gotten it wrong. They are OBLIGED to stay with the incorrect principle, even if it obviously contradicts the words and clear meaning of the Constitution.

Did I actually write something that looks like that?

Did I actually say something along those lines?

Overturned previous rulings based on phony grounds?

Did I say that the Lochner-era right-wing activist Supreme Court did that?

Did I say anything at all about the Lochner-era right-wing activist Supreme Court's overturning previous rulings? Previous rulings based on phony grounds? Previous rulings not based on phony grounds? Any previous rulings at all?

I make no claim to perfection; far from it.

But where does this shit come from?

[Andrew D]

Did I not post that there have been, and still are, activist judges on the left as well as on the right?

Or did I just meant to post it, and end up saying it only to myself?

I'm old, and I'm getting older all the time, so maybe my memory is fading. But I'm pretty sure that I posted something along the lines of

There have been, and there still are, activist judges of all political persuasions.

But maybe that was just a figment of my imagination.