June 17, 2008
Hail Nino, defender slayer of the activist dragon
Justin Levine considers Justice Antonin Scalia's take on judicial activism to be spot on -- dubbing Scalia the primary defender against the problem -- and Levine offers this concise statement of the problem:
The initial test for judicial activism can be summed up in a fairly straightforward manner:
1. Does the outcome derive directly from the text of the law (statute or Constitution).
2. Is the interpretation of the text reasonable.
Point # 1 explored - [Apart from well known and accepted common law going back hundreds of years] Courts should be able to cite the specific text of the law, and draw conclusions directly from it without the need for additional steps. When the Supreme Court decides a case primarily by further interpreting one of its own past decisions rather than the text of the (Congressional, state or Constitutional) law, chances are that it is in activist mode. Supreme Court decisions are interpretations of the law - but that is very different from the law itself. Once you start basing outcomes on past judicial decisions instead of directly from the law’s text itself, you become stuck with an interpretation of an interpretation - becoming further and further removed from the law’s base and causing distortions in it.
Point # 2 explored - The interpretation of the law’s text must be reasonable. How does one have an ‘unreasonable’ interpretation of the text? By interpreting it either too narrowly to give the law any practical effect, or too broadly such that it deprives it of any practical meaning.
A popular example of interpreting text too broadly was the infamous Kelo decision that interpreted the phrase ‘public use’ so broadly as to be practically meaningless. (Many proponents of judicial activism still decried the Kelo decision due to its practical outcome, but they regretfully did so for the wrong reasons, thus helping to ensure that similarly flawed decisions will likely continue in the future).
Levine ends by quoting from Scalia's dissent in Dada v. Mukasey, wherein Nino savages the majority for making it up as they go, arrogating to themselves power and authority they don't properly hold -- but for the fact that they say they do.
I'd say the single biggest threat to the continued viability of the American system, the three separate-but-equal branches of government paradigm, is the weakness (read: cowardice) of the Executive and Legislative branches, who meekly stand by and await their marching orders from the black-robed judicial masters, surrendering to them more and more control with every benighted ruling.
Posted by Mike Lief at June 17, 2008 06:35 AM
| TrackBack