Judicial Activism

[issackd]

(Split from another thread - softwareNerd)

Seems like the judge does not wish to be seen as espousing "activism"...

We should start a new post to debate whether judicial activism is or is not as great as made out to be, although no doubt such a debate will lead to much

Issack

Edited December 27, 2005 by softwareNerd

[Groovenstein]

Why does the judge not wish to be seen as espousing "activism"? I don't know, but I'd guess it's because "[c]harges of 'activism' have essentially become a smear intended to discredit any decision with which one disagrees," and because this judge's decision won't please conservatives, who "have long railed against 'activist' judges 'making' law by legislating from the bench . . . ." See this article.

Among the people on this forum, I doubt this would be a very controversial subject. I would guess most members would agree with Professor Smith's article.

[DavidOdden]

Among the people on this forum, I doubt this would be a very controversial subject. I would guess most members would agree with Professor Smith's article.

It's gonna be hard to generate controversy, but it might be worth a shot. "Activism", as applied to judicial decisions, refers to judges creating law. On the presumption that the law should only be created by The People (or their elected proxies), this would be a bad thing. IMO, this presumption is the root of the problem.

[softwareNerd]

From which we arrive at the conclusion that: if the system runs right, law may be properly be created by both the legislature and the judiciary.

Leaving aside constitutional amendments, is there any real difference in the type of law that can be created by the two branches?

[DavidOdden]

From which we arrive at the conclusion that: if the system runs right, law may be properly be created by both the legislature and the judiciary.

Leaving aside constitutional amendments, is there any real difference in the type of law that can be created by the two branches?

I wouldn't leave anything aside. Let's assume (as we do!) that the content of the law is the primary concern, and not the procedural one about how it came into existence -- then a legal system where all laws were enacted by Judge Narragansett, who had the power to cross out contradictions and add clauses to The Constitution, would be possible. It's true that it could be dangerous to allow judges to amend The Constitution, but it's also dangerous to allow the legislature to do so (see for example the 16th and 18th amendments).

[issackd]

From what I understand, the main opponents to activism argue that judges (unelected) should have no power to create laws and thereby usurp the role of the legislature (elected). In Canada, studies have shown that political patronage is a big factor in the decision to appoint some judges to the Supreme Court.

On the other hand, imagine having some Objectivist judges on the Supreme Court who could counter the growing powers of the legislature and executive... I would argue that it's a good thing. Morality and right/wrong are objective evaluations, so having some Objectivist judges would improve things in my opinion.

I guess an argument could be made that activism can be used both by Objectivists and communists... imagine having 7 of 9 SC judges espousing communism... I guess activism leaves that door open... any thoughts?

softwareNerd, in common law systems, judge-made law is subservient to legislature... the legislature has the power (in the words of my property professor) "to turn a horse into a cow and to make 2 + 2 = 5". Judge-made ("common") law is not substantially different. In terms of procedure, see my first paragraph. Both types of law are binding, but there is a political reality which exists when it comes time to change the law (if necessary). In Canada judges are less likely to strike down / sever legislation than to change fellow-judge-made law.

Issack

[DavidOdden]

From what I understand, the main opponents to activism argue that judges (unelected) should have no power to create laws and thereby usurp the role of the legislature (elected).

Though appellate judges are sometimes elected, even if not in the federal courts: Ohio elects its supreme courts justices. I think the issue is better explained in terms of the function of "representation" rather than strictly being elected, so to quote from one Scalia's classic rant in Chisom v. Roemer at 410:' Surely the word "representative" connotes one who is not only elected by the people, but who also, at a minimum, acts on behalf of the people. Judges do that in a sense - but not in the ordinary sense. As the captions of the pleadings in some States still display, it is the prosecutor who represents "the People"; the judge represents the Law - which often requires him to rule against the People.'

I guess an argument could be made that activism can be used both by Objectivists and communists... imagine having 7 of 9 SC judges espousing communism... I guess activism leaves that door open... any thoughts?

I would be more concerned about what they enforce, rather than what they espouse (though those often end up being the same thing). If the law recognises the right of private property, then as long as judges uphold laws and interpret them (when unclear) with reference to some overarching constitutional statement such as the Purpose Clause, then confiscating private property will simply be illegal and unconstitutional, whether or not the reason for the confiscation is private or "public" (whatever that means).

[issackd]

Hey,

In Ontario, Canada, there is no election of judges. The process has become soured by nepotism... we have an American two-party system here too between the Liberals (Democrats) and Conservatives (Republicans)... and studies have shown that under both governments during the 80s and 90s, political patronage played a higher role in getting judicial appointments than did skill, talent, and experience.

We've tried to remedy the situation with advisory commissions and boards, but the honest truth is that in the end of the day, the same person chooses a judge with little or no need for publicly justifying himself to the voters / citizens.

In the beginning of law school, my constitutional prof handed us an article about judicial activism written by an extremely left-wing think tank in the US which discussed how activism led to many liberal (in the classical sense) laws being put into effect in the US in the mid-20th century. I have no experience with such legal history and know very little about American legal education. It seemed to me that activism was a good thing. Then I realized that it was merely a tool... it can be used by good and bad people. Just like guns help start wars, they also help end wars... so too does judicial activism's benefit depend on the purpose of its use.

Canadian (especially in Ontario) society is quite left-leaning and I have no hope for right-wing representation in the Canadian Supreme Court. Working to bring the system around from the inside is impossible, as a prof told me I would not be appointed for even a clerkship if I included under my hobbies the category of "Objectivism". Sadly, this has driven me away from the judiciary and more towards the business-law aspect of the legal profession.

However, personal ranting aside, I think activism can be both a good and bad tool. A hammer can nail in a nail to build a house or it can be used to hit someone with a thin skull over the head. The hammer itself is not good or bad, its users attract the moral blameworthiness. That sums up my view of judicial activism.

[Groovenstein]

It's gonna be hard to generate controversy, but it might be worth a shot. "Activism", as applied to judicial decisions, refers to judges creating law. On the presumption that the law should only be created by The People (or their elected proxies), this would be a bad thing. IMO, this presumption is the root of the problem.

Well, friend, I'm back to revive this thread. This time, however, I'm back with a few weeks of Federal Jurisdiction under my belt. (As an aside, this has got to be the hardest course in law school.)

As the Constitution stands, judicial law creation is a very dangerous thing. Art. III extends the judicial power only to "cases" and "controversies." This is why they have doctrines of standing, mootness, independent and adequate state grounds, etc. To say that federal courts should create law (not that you're saying this), you absolutely have to say that the Article III power has to be changed. If you don't, then you're defeating one of the great things about a Constitution, which is a document that shouldn't be read to authorize its own violation.

Note that I'm speaking only to the federal aspect of this. State courts can, for example, give advisory opinions, as I believe they did in Massachusetts in the fight over gay marriage up there.

So I guess some questions that remain (not that you bear the burden of answering them) are:

1. Should federal courts be allowed to create law, issue advisory opinions, etc.? If so, how should the current Constitution be changed to reflect that, or how should a new Constitution address it?

2. Should state courts be allowed to create law, issue advisory opinions, etc.? If so, what, if any, other considerations are there that you don't have with regard to federal courts?

[DavidOdden]

As the Constitution stands, judicial law creation is a very dangerous thing. Art. III extends the judicial power only to "cases" and "controversies." This is why they have doctrines of standing, mootness, independent and adequate state grounds, etc. To say that federal courts should create law (not that you're saying this), you absolutely have to say that the Article III power has to be changed. If you don't, then you're defeating one of the great things about a Constitution, which is a document that shouldn't be read to authorize its own violation.

First, I would support changing various aspects of the Constitution, including Art. III, to both allow more of certain kinds of judicial activism and to also curtail other kinds (idem legislative and executive activism). But that's a much longer thread. For now, I would not propose anything that isn't already consistent with Art. III plus, of course, the general framework of law that was implicitly assumed by the framers. Yes, our dreaded friend stare decisis and his father, common law. That would mean that SCOTUS could not make law in the form of Roe v. Wade until Roe brings a case before them. It should not issue advisory opinions until it is asked for an opinion.

1. Should federal courts be allowed to create law, issue advisory opinions, etc.? If so, how should the current Constitution be changed to reflect that, or how should a new Constitution address it?

These discussions often go astray if they aren't explicitly linked to some context, and there are three different ones that I see: the immediate future; something that might be realised in your lifetime; the ultimate goal. For the immediate future, neither federal courts, Congress, or the executive branch should be allowed to make law. These guys are just so bad at law-making that they should all be fired. When was the last time you saw a good law being created? Me neither. I can't say that I think the judiciary is any worse than the legislature.

In the intermediate future, when government becomes significantly less socialistic and when there is somewhat more of a sense of the proper function of law among judges (i.e. the legal positivists and legal realists have all died or retired), then the bad behavior now known as "legal activism" will probably subside, and judges can make law using existing mechanisms (they must be reactive, but can use the power of common law to create law, though law that is "on topic"). As long as their decisions are just, this is a good thing. But that "as long as" clause is scary.

So in the long run, we need a more significant change. The nature of that change is still not clear in my head, but I can at least identify some of the elements. First, the Purpose Clause -- a constitutional statement that defines the proper function of government and decrees that all provisions of law must be interpreted consistent with that purpose. Second, the Non-Common Law Clause, which essentially repudiates the bad elements of common law (stare decisis especially, but in general the idea of deference). Third, the Oops Clause, which handles legislative errors in a rational manner (drafting errors and bad-thinking errors). This would be where quasi-emergencies are dealt with, for example the case in Virginia where they screwed up the wording of a law that was supposed to allow certain kinds of business on Sunday and they ended up outlawing all business on Sunday (and a judge said "No way", and the legislature did fix it). The central principle of the Oops Clause is that errors must be corrected, and they must be corrected quickly.

2. Should state courts be allowed to create law, issue advisory opinions, etc.? If so, what, if any, other considerations are there that you don't have with regard to federal courts?

There is an assumption, which I don't accept, that there should be different legal systems. In the context of the current Constitution where each state is allowed to make up any laws that it wants, with a bit of constitutional guidance when it comes to rights, it is of course undeniable that the question comes up, and I cannot see any reason for distinguishing state and federal courts in terms of creating law and issuing advisory opinions.

[Groovenstein]

For now, I would not propose anything that isn't already consistent with Art. III plus, of course, the general framework of law that was implicitly assumed by the framers. . . . [sCOTUS] should not issue advisory opinions until it is asked for an opinion.

How do you see advisory opinions, even when asked for, as consistent with Art. III?

For the immediate future, neither federal courts, Congress, or the executive branch should be allowed to make law. These guys are just so bad at law-making that they should all be fired.

Priceless, DO. Priceless.

In the intermediate future . . . judges can make law using existing mechanisms (they must be reactive, but can use the power of common law to create law, though law that is "on topic"). As long as their decisions are just, this is a good thing. But that "as long as" clause is scary.

That "as long as" bit is scary. One thing in particular that scares me is just the very idea of a judge "creating" law after the fact. Whether that's any better or worse than what we have now, I don't know.

Second, the Non-Common Law Clause, which essentially repudiates the bad elements of common law (stare decisis especially, but in general the idea of deference).

Deference of all kinds, or just certain kinds, e.g. Chevron? Is it that you don't like deference given our current political and judicial climates, or that you don't think deference belongs in any legal system, even one in which the substantive laws were generally excellent?

There is an assumption, which I don't accept, that there should be different legal systems.

I remember us having discussed this a little some time ago (the fraud committed simultaneously in multiple states). Assuming that the substantive laws were proper or mostly proper, have you thought about what setup you would prefer? That is, are there any major areas you see that should be exclusively within the domain of a state or federal government? The first possibility that comes to mind is the U.S. military, but I'll have to think that through to see why, if at all, that's any different from a state court enforcing any other federal right.

This is some pretty heavy stuff. It seems like you've thought about it more than I have.

[DavidOdden]

How do you see advisory opinions, even when asked for, as consistent with Art. III?

I was thinking that they involve Controversies to which the United States shall be a Party (etc.). I'm missing something: why wouldn't they be?

That "as long as" bit is scary. One thing in particular that scares me is just the very idea of a judge "creating" law after the fact. Whether that's any better or worse than what we have now, I don't know.

Ah. Well, then clarification is called for. The law states, in the clearest manner that it can, what you may and may not do. In some cases it is clear, in other cases it is unclear. If the law is unclear, lenity requires that the defendant be given the benefit of the doubt. At the same time, the judge may recognize the error in the statement of the law, and create a fix (essentially by rewriting the law). I would suggest that this be an emergency rewrite, subject to more careful scrutiny, so for example, a rewrite valid for only 6 months. So this is after the fact, but harmlessly so. 'Zat okay?

Deference of all kinds, or just certain kinds, e.g. Chevron? Is it that you don't like deference given our current political and judicial climates, or that you don't think deference belongs in any legal system, even one in which the substantive laws were generally excellent?

I don't like it generally. I accept that some people may know more than others about a matter, so I always defer to a particular colleague when it comes to issues of quantifiers in DRT. In law, I don't see that deference is a matter of recognizing superior knowledge, rather it is a statement of superior position. I just don't find that to be a good basis for rational law. There is no reason to say that the executive has superior knowledge of the nature of "theft" so that his beliefs about theft should be given pride of place over that which a well-trained and objective legal specialist (justice) recognizes. In an excellent legal system, there would be no conflict. What I find most foul about deference is that it cuts out reason: if there is a reason for the executive to say X, then he can state the facts that lead to the conclusion, for all to see. Deference says "I don't need to objectively justify this conclusion, because I have the power to make any law I want"

I remember us having discussed this a little some time ago (the fraud committed simultaneously in multiple states). Assuming that the substantive laws were proper or mostly proper, have you thought about what setup you would prefer? That is, are there any major areas you see that should be exclusively within the domain of a state or federal government? The first possibility that comes to mind is the U.S. military, but I'll have to think that through to see why, if at all, that's any different from a state court enforcing any other federal right.

I don't see a clear rationale for separate legal domains. The weather in Ohio is different from the weather in California, but I don't think that weather should be a matter of law (or vice versa). I know the specter of the dreaded federal octopus growing any larger is frightening, but if the function of government is to protect rights and rights are the same in Florida, Maine and Alaska (and points in between), why would it be necessary to state those rights 50 different times, in exactly the same way? I think I've moved towards a position that I footnoted, back when. I suggested that there's no good reason to have federal prosecutors; now I'm arguing that there's no good reason to have state prosecutors. The main point is that there's no good reason to have competing governments, which is essentially what we have. Given the undeniable merit of a federal government for military purposes plus the fact that you need some quasi-federal mechanism to prevent border-crossing from being prophylaxis against justice being meted out, I'm thinking we could get rid of these states, as legal entities.

[Groovenstein]

I was thinking that they involve Controversies to which the United States shall be a Party (etc.). I'm missing something: why wouldn't they be?

Because at least since Marbury (1803) and Hayburn's Case (1792) the Court has said that it has the final say on what the law means and that its decisions can not be subject to revision by the legislative and executive branches. An advisory opinion is something that is subject to revision and resolves no case or controversy between concrete parties, and thus the Court has said that this places it outside the "judicial power" as that term is used in Art. III.

I don't about know about this personally, but this is how the Court has considered it since basically the beginning of the Republic. That's why I don't quite get your argument. Where is the "controversy" when a court issues an opinion on a hypothetical set of facts? Who are the "parties" in a hypothetical? How do advisory opinions fit within the "judicial power"?

I'm really interested to hear this, DO, because, well, I've never heard it before.

At the same time, the judge may recognize the error in the statement of the law, and create a fix (essentially by rewriting the law). I would suggest that this be an emergency rewrite, subject to more careful scrutiny, so for example, a rewrite valid for only 6 months. So this is after the fact, but harmlessly so. 'Zat okay?

Sorry, I'm still not quite clear. What kinds of "error" are you envisioning? Are you just talking about absurd results/scrivener's errors, a la Bock Laundry, or something else?

I don't like it generally. . . .

You raise some good points here. On a related note, what do you think, assuming a proper government, about standards of review for factual findings? Should they all be subject to de novo review, only some, or none? Your reasoning suggests all, but that seems like quite the thing with which to burden the appellate courts' dockets.

f the function of government is to protect rights and rights are the same in Florida, Maine and Alaska (and points in between), why would it be necessary to state those rights 50 different times, in exactly the same way? . . . The main point is that there's no good reason to have competing governments, which is essentially what we have.

I recall a discussion on here, which after searching for several minutes I have been unable to find, in which someone said that one reason to follow the law is that you might be mistaken about whether you are violating rights or not. Does this ring any bells? If it does, I'd love to hear you expound upon it.

Anyway, a good reason to have competing governments is for those areas in which the objective legal ideas are not so clear. Should dope smoking be legal? Assuming no responsibility not to, e.g. child neglect, that's easy enough. But what about something like responsibility for attorney's fees in various contexts? I'm not prepared to say that's an open and shut issue, and I really haven't given it much thought. And where something isn't open and shut, I think competing governments would be a good thing. For one, you'd get to see the different rules in action, which would hopefully provide some insight into which one was better. Two, people would have an easier time leaving if they preferred one way over the other.

[DavidOdden]

Because at least since Marbury (1803) and Hayburn's Case (1792) the Court has said that it has the final say on what the law means and that its decisions can not be subject to revision by the legislative and executive branches. An advisory opinion is something that is subject to revision and resolves no case or controversy between concrete parties, and thus the Court has said that this places it outside the "judicial power" as that term is used in Art. III.

I haven't read many advisory opinions, so here is one of those places where I'm groping in the dark, i.e. I don't know for sure what they really are. However, an advisory opinion would (given the cases that I've read) articulate what the law says, removing any ambiguity of interpretation, and does so without reference to specific parties. There may be no case "out there".

To concretize this a bit, Washington has a law restricting transport of machine guns and the question is whether that law applies to members of the military not engaged in performance of official duties. The relevant language is that "such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the armed forces", so is the exception extended to off-duty military? The AG opines that there is no restriction on the military (I find his reasoning vile, but the conclusion is correct. He states "The statutory language of RCW 9.41.190 is plain and unambiguous", and the rest of the opinion is obfuscatory puffery. We can have a thread on this opinion). I don't know why the question arose, and since it was broached by a state senator, I imagine there was an evil underlying intent. In principle, this question could be raised by a person wishing to be in conformity to the law, while not knowing for certain what the law requires (gosh, does that ever actually happen?). There is no actual legal case, of a soldier being arrested for possession of a machine gun, so how are we to be able to determine the legal course of action, if the only way to get a definitive interpretation of the law is to violate it and see if you go to prison?

But what you're saying is that in addition, the opinion can be invalidated. I would agree that no finding of the court should be subject to further decision-making by the executive or legislative branches -- that would lead to an incoherent legal system. Advisory opinions issued by courts should be subject to the same review that advisory opinions by an AG are subject to: review by a court of appropriate authority. Only SCOTUS may review decisions, of any type, by SCOTUS. As far as I can see, this is fully consistent with Marbury.

Where is the "controversy" when a court issues an opinion on a hypothetical set of facts? Who are the "parties" in a hypothetical? How do advisory opinions fit within the "judicial power"?

One party is the state, which has authored a law that requires interpretation. The other party is the person with an interest, for example a soldier wanting to know if he may legally possess a machine gun, without having to get arrested. The controversy is (would be) that the state (probably via the AG) holds that the law prohibits the action, and the citizens believes the action to be lawful. The court still must be reactive -- someone has to file.

Sorry, I'm still not quite clear. What kinds of "error" are you envisioning? Are you just talking about absurd results/scrivener's errors, a la Bock Laundry, or something else?

I suppose you could subsume this under "absurd results", but then we get back to what an absurd result is. The Virginia blue law error would be one of those d'oh moments, idem the "and both" error that was brough to light in Pabon-Cruz. However, the federal perjury statute is still in error because it does not include the results of Bronston, much less that of Dezarn. These are really important findings, and in both cases, the court makes an important discovery about what the law says and what the purpose of the law is. The (original) error, then, is not anticipating a significant class of cases and squarely addressing that context. Conceptually, we can probably subsume these cases under absurd results.

In addition, though, any law which is ambiguous or unparseable is in error. I am really hard-nosed about this, and I wish that they had put Fuller up for Roberts' job. 18 USC 1030 (a) is one sentence. This is appalling: don't these guys ever take writing classes? There was a statute about deceptive advertising in NY (can't find the citation right now) that states "Any person who has been injured by reason of any violation of section 350 or 350-a of this article may bring an action in his own name to enjoin such unlawful act or practice and to recover his actual damages or fifty dollars, whichever is greater". Does that mean that you have to both seek an injunction and sue for damages, or can you just sue for damages without seeking an injunction (or vice-versa)? Either wording is plausible (both readings were held to be correct by courts) -- the language is unclear, and should be repaired.

On a related note, what do you think, assuming a proper government, about standards of review for factual findings? Should they all be subject to de novo review, only some, or none? Your reasoning suggests all, but that seems like quite the thing with which to burden the appellate courts' dockets.

The docket burden is a significant consideration; OTOH the purpose of the court is to dispense justice, not engage in beautifully-executed martial arts katas. Suppose that you're the defense attorney, the state presents some evidence that turns out to be damning, only the underlying science is sufficiently naff that in reality is not probative. Alas, you skipped the class on voiceprints, so you don't object to the evidence. I suspect that an ineffective counsel appeal wouldn't get very far; but once you know that voiceprints aren't worth spit, you have a valid basis for appeal.

And where something isn't open and shut, I think competing governments would be a good thing. For one, you'd get to see the different rules in action, which would hopefully provide some insight into which one was better. Two, people would have an easier time leaving if they preferred one way over the other.

We seem to have different strands of the competing governments issue here. Should there be two governments covering the same territory, i.e. for Nebraska should Mattgov and Davegov both offer competing government services for people living in that particular rectangle: no. Should people have the choice of living in Nebraska or Kansas depending on whether they prefer the laws of Kansas or Nebraska: yes. (Substitute "US' and "Canada", if you prefer). The problem of unclear cases is quite important. What about those attorney fees responsibilities? If you can point to a concrete unclarity with competing rational views, that would help.

[Groovenstein]

However, an advisory opinion would (given the cases that I've read) articulate what the law says, removing any ambiguity of interpretation, and does so without reference to specific parties. There may be no case "out there".

As I understand it, that's exactly what an advisory opinion is, and it's the lack of a "case" that places it outside Art. III. Note that that does not place it outside the states, nor outside other courts, e.g. Art. I courts (an example of which is a military tribunal).

The AG opines that there is no restriction on the military. . . . There is no actual legal case, of a soldier being arrested for possession of a machine gun, so how are we to be able to determine the legal course of action, if the only way to get a definitive interpretation of the law is to violate it and see if you go to prison?

I don't know about what you need to challenge the validity of an AG interpretation/regulation. One way is what happened in Gonzales v. Oregon, where Oregon, a physician, a pharmacist, and some terminally ill state residents sought an injunction in federal District Court. So where the State has a conflicting law, perhaps this provides a basis for challenge?

Another possible route is a declaratory judgment, but I'm not very familiar with the ins and outs of those. My recollection is that they still require an actual controversy but you don't necessarily have to wait until you're damaged before you can get one. Whatever that means . . . .

In addition, though, any law which is ambiguous or unparseable is in error. . . . Either wording is plausible (both readings were held to be correct by courts) -- the language is unclear, and should be repaired.

Another idea is, where a statute is determined to be ambiguous, the court could issue a mandamus directing the legislature to resolve the ambiguity within a given time period. Hmm, I've never thought about that one, either.

Suppose that you're the defense attorney, the state presents some evidence that turns out to be damning, only the underlying science is sufficiently naff that in reality is not probative. . . . once you know that voiceprints aren't worth spit, you have a valid basis for appeal.

I would hope so. But wouldn't that be a question of law? I can see the appellate court ruling now: "We hold that voiceprints are inadmissible under Federal Rule of Evidence 403 because their probative value is substantially outweighed by their prejudicial effects." I was talking about pure factual findings, e.g. "David Odden is not a credible witness."

We seem to have different strands of the competing governments issue here. Should there be two governments covering the same territory, i.e. for Nebraska should Mattgov and Davegov both offer competing government services for people living in that particular rectangle: no.

Clearly no, but what of dual governments that might overlap in a particular territory, but not in particular subject matter? For example, our respective copyrights are governed exclusively by the United States (so long as they're fixed in a tangible medium).

Should people have the choice of living in Nebraska or Kansas depending on whether they prefer the laws of Kansas or Nebraska: yes.

Talk about a Hobson's choice.

[DavidOdden]

As I understand it, that's exactly what an advisory opinion is, and it's the lack of a "case" that places it outside Art. III.

Just looking at the wording of Art. III, why not a Controversy, as allowed in Art. III? It may well be that the courts have decided to not get into controversies, but that would be extra-constitutional restraint, as far as I can see.

I would hope so. But wouldn't that be a question of law? I can see the appellate court ruling now: "We hold that voice prints are inadmissible under Federal Rule of Evidence 403 because their probative value is substantially outweighed by their prejudicial effects." I was talking about pure factual findings, e.g. "David Odden is not a credible witness."

I was thinking in terms of a determination of guilt, which is based on a factual finding such as "Smith did say 'I will kill you' to Jones" as well as "This is a threat" (another contextual factual finding) as well as a finding (integration of fact and law) that the act is included in what is described by the No Threats Act. So are you talking of court decisions that start from a trial court's verdict and derives something new (e.g. "Odden is a liar; his testimony is prejudicial; we remand the case for re-trial")? Then at the next level of appeal, the higher court can and should consider the factual finding "Odden is a liar" de novo. This should be done regardless of whether the facts about my truthfulness were known or brought out at the time of the trial or the appeal. Because justice is not primarily about the proper ritual, but about what reality is, so facts should not be excluded from consideration because they weren't introduced at the right moment. I'm not saying to heck with procedure, just that concern from truth is paramount.

[Groovenstein]

Just looking at the wording of Art. III, why not a Controversy, as allowed in Art. III? It may well be that the courts have decided to not get into controversies, but that would be extra-constitutional restraint, as far as I can see.

I wish I could give you a better answer right now other than "that's what they've always said", which is clearly not my own opinion, merely the acknowledgement of history. I see this might be quite the interpretational project, for which I would do things like read Federalist papers and what have you to see what the Founders meant by those terms. After all, if they used two different words in the same section, and we are to assume they are not surplusageous ( ) synonyms, they must have different meanings, right?

Because justice is not primarily about the proper ritual, but about what reality is, so facts should not be excluded from consideration because they weren't introduced at the right moment. I'm not saying to heck with procedure, just that concern from truth is paramount.

Looking back a few posts at your initial example (that you later learn that voiceprints are worthless), we're talking about some sort of newly discovered evidence claim, yes? Are you aware of the current law on this subject? I ask because I'm not, so perhaps you can shed some light on what particular issues you have with the current procedures for getting consideration of new evidence. If you're not aware of the current law, then perhaps this is something we can learn together over a little time. If I'm being honest (to quote Simon Cowell), I'm fairly exhausted at the moment, so I don't really feel like looking it up just now.

[dark_unicorn]

Speaking for myself on this issue, Judicial Activism has become a very generic term that is used by the "New Left" to criticize the Judiciary for stymieing their plans to plant the virus of collectivism into the economic system visa ve the Interstate Commerce Clause, something which should be taken out of the Constitution in my view as an outdated and obsolete act that pertained to a confederation of states, not a union of many states into one country.

Likewise, the "New Right" has recently been up in arms over various actions taken by the court, most noteworthy being the Oregon "assisted suicide" laws and "Roe vs. Wade", which prevent the New Right from usurping the rights of Liberty granted to every rational human being.

However, Judicial Activism has also been used to Label the horrible result of the "Kilo vs. Conneticut" case, which essentially threatens to turn the US into a carbon copy of Mussolini's Fascist Italy. Clearly we are faced with a problem that is not unique to an out of control Legislature or Executive branch driven by bad philosophy which perpetuates bad ideology, but also ties into the Judiciary also behaving in a tyrannical way and usurping the true meaning of constitutional law.

The solution to this problem is not an easy one, one would be tempted to try a coup and then write a new constitution and then give power back to the people the way Pinochet did in Chile, the result being that every socialist, authoritarian dictator, and ignorant proponent of democracy would universally hate you because you employed rough methods to deal with extremely rough enemies. As tempting as it would be to turn the guns that socialists point at individuals to steal their rights and give them a taste of their own medicine, the proper approach is to fight them on the democractic front, argue for a 100% objective constitution, and marginalize the collectivist threat by convincing enough people to vote them out.

[DavidOdden]

As tempting as it would be to turn the guns that socialists point at individuals to steal their rights and give them a taste of their own medicine, the proper approach is to fight them on the democractic front, argue for a 100% objective constitution, and marginalize the collectivist threat by convincing enough people to vote them out.

There is a second proper front, and that is through legal education. Besides needing legislators who better understand the proper function of government, we need a judiciary which understands the function of law. Scalia is absolutely right that the left wing of the court is just making up meanings in their interpretations of the law -- in my opinion, Scalia is pretty good in understanding what the sentences in statutes mean. Where he is not so good is in thinking that it's okay for the government to pass any arbitrary law: he's way to deferential to legislators. (He's also a jerk when it comes to religious issues). The lefties, on the other hand, generally are better at understanding individual rights for non-economic issues, but they are also liars when it comes to connecting what the law says and the right outcome. These issues are so abstract and complicated that the issue of judicial education can't be subsumed under a plan to vote the collectivists out of office.

[dark_unicorn]

There is a second proper front, and that is through legal education. Besides needing legislators who better understand the proper function of government, we need a judiciary which understands the function of law. Scalia is absolutely right that the left wing of the court is just making up meanings in their interpretations of the law -- in my opinion, Scalia is pretty good in understanding what the sentences in statutes mean. Where he is not so good is in thinking that it's okay for the government to pass any arbitrary law: he's way to deferential to legislators. (He's also a jerk when it comes to religious issues). The lefties, on the other hand, generally are better at understanding individual rights for non-economic issues, but they are also liars when it comes to connecting what the law says and the right outcome. These issues are so abstract and complicated that the issue of judicial education can't be subsumed under a plan to vote the collectivists out of office.

Indeed, this educational approach would be essential, but it is also neccesary to elect different politicians in order to accomplish this. Having better educated judge-material is great, but accomplishes nothing if they are not appointed.