Question about "activist judges"

pgwenthold · 22nd February 2004, 10:34 AM

A lot of the complaints about gay marriage is that so-called "activist judges" are reinventing terms. The response has been to propose amending constitutions to make sure they don't do that.

But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."?

It seems to me that the whole fact that we need to change the constitution in order to prohibit gay marriage is an admission that it is allowed by the current version, and these supposed "activist judges" are only doing what they should be doing.

This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't."

hammegk · 22nd February 2004, 10:41 AM

Quote:

Originally posted by pgwenthold

This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't."

Congratulations. You show you understand one facit of the true battle now underway.

I suggest the next few decades in the USA -- assuming there is a future -- will be spent in a battle to rein in judiciary power; the activism is irrelevant. Legislatures can legislate, and Executive can ignore.

just my usual drive-by ....

Silicon · 22nd February 2004, 10:46 AM

Quote:

Once a social taboo, love across the color line is becoming increasingly common. The number of interracial marriages in the U.S. has leaped almost 1,000% since 1967, when a landmark Supreme Court decision, Loving v. Virginia, voided state antimiscegenation laws that forbid unions between the races. Today there are more than 2 million interracial marriages, accounting for about 5% of all U.S. marriages, and almost half a million of them are between blacks and whites.

Yet even after the Loving decision, which required the state of Virginia to recognize the marriage between a white man and a black woman, Richard and Mildred Loving, the resistance to mixed nuptials in the South seemed to stay as firm as the reverence some there still have for the Confederate flag. It was only three years ago that Alabama became the last state to drop its (unenforceable) ban on mixed marriage, and it did so with just a 60%-to-40% vote by residents to make the change.

http://www.time.com/time/connections...449470,00.html

Remember, the majority of voters were against interracial marriage in 1967.

"antimiscegenation". Now there's a word I've never heard in my lifetime. A word so foul.

hammegk · 22nd February 2004, 10:57 AM

IIRC, the KKK and the NRA were founded in the same year.

Are you sure you want to "register"? I think I'd go my gay and merry way as low-key as possible. That's just me, I guess.

Zero · 22nd February 2004, 12:04 PM

"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

pgwenthold · 22nd February 2004, 12:11 PM

Quote:

Originally posted by Zero
"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response."

Zero · 22nd February 2004, 12:16 PM

Quote:

Originally posted by pgwenthold

I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response."

I think it is more than what you state...I think it is more about wanting to actually tear down America and rebuild it as a place where religious bigots can bully all three branches of government, instead of just being able to coerce two of them.

Tmy · 22nd February 2004, 03:20 PM

Judges interpet the laws. So in Mass the marriage laws and contsitution were written in a way that allowed the Judges to interpret the laws to allow gay marriage. In other states the laws are written in a way that woudl not allow this.

The funny thing is that the latest talk in Mass is that we shoudl elect Judges in order to prevent "judical activism". Of cousre wouldnt turning judges into politicians cause more judical activism???

Some Friggin Guy · 22nd February 2004, 05:21 PM

Whoever said that "judicial activism" is a concept created as a lie by the right wing, is only half-right.

The concept of judicial activism is real, however, it was created by the right-wing.

If you assume an activist is someone who participates in some kind of active, though peaceful, demostration against the government, I think a pretty strong case can be made for Roy Moore to be labelled an activist judge.

Brown · 23rd February 2004, 07:57 AM

People seem to be opposed to activist judges. And yet, it's really hard to find anyone who can intelligently define what an "activist judge" is.

Perhaps the most common "definition" is "a judge that applies the law, and doesn't make the law." This is a naive and useless definition. All good judges make law. All good judges HAVE TO make law. Judges have to interpret and apply statutes, and that is a kind of "making law." Even when there are no statutes, judges have made law. In many states, the laws that hold a negligent person responsible for the consequences of his negligence, for example, are judge-made laws. You won't find those laws in the statutes passed by the legislature; you'll find them in the casebooks that report the decisions of the appellate courts. There are many other areas of law and settled legal doctrines that have been crafted by the judicial branch, one case at a time.

Also, there is some confusion about which branch of the government "makes law." In general, the feeling is that the legislative branch is the only branch that should "make law." But in fact, all three branches make law. The branch that makes the most law is the executive branch, no question about it.

Another useless definition of an "activist judge" is "one that does not abide by the will of the elected legislature." It has been part of American jurisprudence since the case of Marbury vs. Madison that the courts can declare legislative acts unconstitutional. Since then, the power to declare legislative acts unconstitutional has been generally considered to be valuable to the checks and balances of government. Besides, it is not uncommon for a legislature to pass a statute that is constitutionally questionable but popular with the citizens, with the legislature having a pretty good idea that the courts will not let the law stand. In other words, the legislature often relies upon the court to protect itself from foolish actions that are favored by the majority.

Most charges of "judicial activism" lately have been bogus. The ones making the charges do not seem to know what "judicial activism" means. Perhaps they think it means that a judge made a decision that they don't like.

Cleon · 23rd February 2004, 08:10 AM

This is very simple.

An "activist judge" is a judge that, through the information presented to him/her, comes to a decision that may not be popular.

I.e., finding that the Massachusetts law banning gay marriage violates the state Constitution provokes cries of "activist judges." (Never mind that most of the people whining about "activist judges" couldn't tell you what the Mass. constitution said or whether the law was constitutional or not).

Ladyhawk · 23rd February 2004, 08:16 AM

Quote:

Originally posted by pgwenthold

But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."?

Hi, PG....

No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future. Gay marriage is a very emotional debate and is receiving a lot of attention right now, putting the spotlight on any decision being rendered by any judge. (For the record, I am in favor of gay marriage).

Otherwise, you're asking judges to predict the future and rule on the basis of that prediction on current cases, regardless the issue. That can be a dangerous thing....

pgwenthold · 23rd February 2004, 08:29 AM

Quote:

Originally posted by Ladyhawk

No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future.

OK, I back off the original comment to say that the constitution allows it, but it is still the case that the constitution is not clear on the issue.

Thus, why blame the judge when the constitution needs to be fixed?

Either the constitution is clear that gay marriage is wrong, in which case the judges would be making mistakes, or the constitution is not clear and there is room for alternate interpretations. If it's the former, then there is no reason to mess with the constitution. If it is the latter, then the "activist judges" are not the problem.

Samus · 23rd February 2004, 08:31 AM

An "activist judge" is one that rules by personal opinion rather than by what the law (to include the constitution) says. It's the buzzword de jour.

U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. So, a state judge ruling that marriage can be defined as something else is trumping federal law, which is a no-no. Unless...the U.S. code trumps the constitution, which is the document from which all laws are derived and must be compliant under.

So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution?

If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court.

If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law.

corplinx · 23rd February 2004, 08:41 AM

An activist judge is one that rules in favor of something you dislike.

Upchurch · 23rd February 2004, 08:44 AM

Quote:

Originally posted by Commander Cool
U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman.

The question is, which takes presidence, the code or, say, the 1st and/or 14th Amendments (depending on how you look at it)?

Interestingly, according to the above link, that code has only been in effect since 1947. Not that it was as socially acceptable as it is now, but does that mean it was fully legal for gays to get married prior to 1947?

Brown · 23rd February 2004, 08:44 AM

Quote:

Originally posted by Commander Cool
U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. So, a state judge ruling that marriage can be defined as something else is trumping federal law, which is a no-no.

Except that this definition is limited to federal law: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States...." This definition provides a rule of interpretation of federal laws, but does not purport to supercede state laws.

As a side note, some people really get thrown for a loop by the definitional provisions of section 1, even though there are very good reasons for them:

Quote:

In determining the meaning of any Act of Congress, unless the context indicates otherwise - words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular; words importing the masculine gender include the feminine as well....

Many states have statutes that say similar things: the singular includes the plural, the masculine includes the feminine, etc., and some people think these laws are nuts.

Cleon · 23rd February 2004, 08:51 AM

Quote:

Originally posted by corplinx
An activist judge is one that rules in favor of something you dislike.

In a nutshell, that's a very apt description.

Dancing David · 23rd February 2004, 08:51 AM

Quote:

Originally posted by Zero
"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

The funny thing about this is that there is a lot of 'judicial activism' on the right as well, where judges makes rulings in favor of conservatives and take actions that benefit the conservative issues.

When the EPA was squaleched in the name of property rights , a very good example, it was conservative 'judicial activism'.

It is seen the most in lower courts, where say a judge awards vistation to an abusive man, just because the wife has done something to piss him off.

pgwenthold · 23rd February 2004, 08:58 AM

Quote:

Originally posted by Commander Cool
So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution?

If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court.

If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law.

I agree with everything you say. But this is the rub: in the State of the Union, for example, the president complained about activist judges perverting society, but then said we needed a constitutional amendment to outlaw gay marriage. If the judges were "activist judges" by ruling in favor of gay marriage, then that means that the current version of the constitution must not prohibit laws against it, and they were wrong to rule as they did. But if that is the case, why does the constitution need to be amended?

As you indicate, the two concepts are mutually exclusive. Either the constitution currently allows for gay marriage, in which case it needs to be amended, or the current constitution does not allow for it, and it is a problem of activist judges. It makes no sense to claim both.

hammegk · 23rd February 2004, 09:02 AM

Quote:

Originally posted by Dancing David

It is seen the most in lower courts, where say a judge awards vistation to an abusive man, just because the wife has done something to piss him off.

Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level.

I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too.

Zero · 23rd February 2004, 09:04 AM

Quote:

Originally posted by hammegk

Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level.

I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too.

In other words, we can expect judges to not do their jobs, and not uphold their oaths, just like "Judge" Moore?

Samus · 23rd February 2004, 09:13 AM

Quote:

Upchurch: The question is, which takes presidence, the code or, say, the 1st and/or 14th Amendments (depending on how you look at it)?

The derived right of "freedom of expression" and the 10th/14th amendments would always take precedence. The U.S. Constitution is the point from which all other laws must be derived from and compliant under. However, one must first prove that proscribing gay marriage is in fact a violation of said document.

Quote:

Upchurch: Interestingly, according to the above link, that code has only been in effect since 1947. Not that it was as socially acceptable as it is now, but does that mean it was fully legal for gays to get married prior to 1947?

My guess, and this is just a guess, is it wasn't necessary to codify a definition before then. Pre-New Deal, the federal government had such a lesser role in people's lives, there was probably no compelling reason to define such a thing. However, I do not know the history behind that section of U.S. code.

Samus · 23rd February 2004, 09:20 AM

Quote:

Brown: Except that this definition is limited to federal law: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States...." This definition provides a rule of interpretation of federal laws, but does not purport to supercede state laws.

Right, but can a state re-define the term for their own purposes? State laws cannot trump federal law. This makes gay marriage as much a states' rights issue as it does anything else.

Samus · 23rd February 2004, 09:24 AM

Quote:

pgwenthold: I agree with everything you say. But this is the rub: in the State of the Union, for example, the president complained about activist judges perverting society, but then said we needed a constitutional amendment to outlaw gay marriage. If the judges were "activist judges" by ruling in favor of gay marriage, then that means that the current version of the constitution must not prohibit laws against it, and they were wrong to rule as they did. But if that is the case, why does the constitution need to be amended?

I think the president's stance would be that the lower-level judges should not be able to rule against federal law, and the move for a constitutional amendment is to prevent further trumping of said law.

However, you are correct that the desire to explicitly disallow it seems to indicate those "activist judges" are merely pointing out that the U.S. code does not comply with the constitution. So he wants to change the constitution to fit the current U.S. code.

Brown · 23rd February 2004, 09:38 AM

Quote:

Originally posted by Commander Cool
Right, but can a state re-define the term for their own purposes? State laws cannot trump federal law. This makes gay marriage as much a states' rights issue as it does anything else.

A state can adopt its own definitions, sure, and many (if not all) do. Doing so does not necessarily conflict with federal law, so there is no supremacy problem.

You are correct that it is possible for supremacy problems to arise. For example, it is not uncommon for a state court to apply or interpret federal laws. It is possible for the federal law to include a term that defined one way by federal statute and a different way by state statute. In those instances, it would be error for the state court to apply the state definition. The state court must apply the federal definition.

Dancing David · 23rd February 2004, 10:38 AM

Quote:

Originally posted by hammegk

Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level.

I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too.

hammegk,
I mentioned lower courts specificaly, and I am thinking of a particular judge here in a rura; county. this man brags about how many orders of protection he doesn't grant. He does act to preserve the custodial rights of men, very much so. In his county you can beat your wife and send the kid to the hospitla. And then you can still get visitation with your kid, he even overturned an OP that a mother had persued to protect the child, on the basis of not deny-ing the abuser thier rights.

Get ready for a lot more of them that do not favor pc-lib agendas.
Why get ready? They have been doing it all along! Judicial activism always has and always will cut both ways! Remember when the courts were into inion busting? I suppose that was liberal pc'lib. Geez hamme all the judges that have been appointed since Carter are by and large 'conservative'.

More conservative whining?

[digression]
This doesn't even begin to look at the system that gives all sorts of breaks to the abuser (male or female), police officers act as a filters all the time as to wether or not a report is even made:they do not just make reports willy-nilly. Then the State's Attorney will almost never charge domestic battery, even when it clearly is domestic battery. Please bargin do away with most of what remains. So by the time that case is likely to ever go to court , the judge goes and does what theya re supposed to and protects the rights of all parties, but often they just ignore the eminent risk that thier choices make. this is why and how kids get killed every day, even though the reprts are made. judges will always act to return children, another example of 'judicial activism'.
[/digression]

VicDaring · 23rd February 2004, 10:50 AM

Give the right some credit on this one. They've taken an already divisive issue and couched it in simple, easily parroted, if vague, terminology.

If you think gays are real Americans, with all the rights and privileges thereof, you're a "moral relativist." If you're a jurist who makes a ruling with that reflection, you're "an activist judge."

Just hammer that home. Repeat those catch phases a couple thousand times.

It's like the stations of the freakin' cross.

corplinx · 23rd February 2004, 10:57 AM

Conservative Definition of Liberal Activist Judge:
wants equal protection to mean equal protection

Liberal Definition Conservative Activist Judge:
Favors strict constructionism which means Roe V. Wade is a bad decision.

Definitions for Moderates:

Liberal Activist Judge:
Give a criminal a big settlement for getting hurt in the home of his victim.

Conservative Activist Judge:
Makes a Ten Commandments Monolith

As you can see, an activist judge is a purely relative term.

The Central Scrutinizer · 23rd February 2004, 07:55 PM

Quote:

Originally posted by pgwenthold
A lot of the complaints about gay marriage is that so-called "activist judges" are reinventing terms. The response has been to propose amending constitutions to make sure they don't do that.

One problem - there is no such thing as "activist judges".

gnome · 24th February 2004, 05:56 PM

Quote:

Originally posted by corplinx

Liberal Activist Judge:
Give a criminal a big settlement for getting hurt in the home of his victim.

As usual I speculate that such settlments are
a) extremely rare and
b) often involve details not widely known that cause the verdict to make more sense.

News media love to make a verdict seem surprising, and as such leave out the details that convinced the jury.

I'm not saying never, and it surely sucks when it does happen, but how big of a problem is this?

On the other hand, I have found one thing I agree with you on...

"Activism" is applied to any judge that interprets the law differently than the complainer.

"Plain meaning" = MY interpretation.

22nd February 2004, 10:34 AM	#1
pgwenthold Penultimate Amazing Join Date: Sep 2001 Posts: 12,068	Question about "activist judges" A lot of the complaints about gay marriage is that so-called "activist judges" are reinventing terms. The response has been to propose amending constitutions to make sure they don't do that. But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."? It seems to me that the whole fact that we need to change the constitution in order to prohibit gay marriage is an admission that it is allowed by the current version, and these supposed "activist judges" are only doing what they should be doing. This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't."
	__________________ "Baseball is a philosophy. The primordial ooze that once ruled our world has been captured in perpetual motion. Baseball is the moment. Its ever changing patterns are hypnotizing yet invigorating. Baseball is an art form. Classic and at the same time...progressive. Baseball is pre-historic and post-modern. Baseball is here to stay." (Stolen from the side of a lava lamp box, and modified slightly)

22nd February 2004, 10:41 AM	#2
hammegk Banned Join Date: Jan 2002 Posts: 8,422	Re: Question about "activist judges" Quote: Originally posted by pgwenthold This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't." Congratulations. You show you understand one facit of the true battle now underway. I suggest the next few decades in the USA -- assuming there is a future -- will be spent in a battle to rein in judiciary power; the activism is irrelevant. Legislatures can legislate, and Executive can ignore. just my usual drive-by ....
hammegk Banned Join Date: Jan 2002 Posts: 8,422

22nd February 2004, 10:46 AM	#3
Silicon Graduate Poster Join Date: Jun 2003 Posts: 1,644	Quote: Once a social taboo, love across the color line is becoming increasingly common. The number of interracial marriages in the U.S. has leaped almost 1,000% since 1967, when a landmark Supreme Court decision, Loving v. Virginia, voided state antimiscegenation laws that forbid unions between the races. Today there are more than 2 million interracial marriages, accounting for about 5% of all U.S. marriages, and almost half a million of them are between blacks and whites. Yet even after the Loving decision, which required the state of Virginia to recognize the marriage between a white man and a black woman, Richard and Mildred Loving, the resistance to mixed nuptials in the South seemed to stay as firm as the reverence some there still have for the Confederate flag. It was only three years ago that Alabama became the last state to drop its (unenforceable) ban on mixed marriage, and it did so with just a 60%-to-40% vote by residents to make the change. http://www.time.com/time/connections...449470,00.html Remember, the majority of voters were against interracial marriage in 1967. "antimiscegenation". Now there's a word I've never heard in my lifetime. A word so foul.
Silicon Graduate Poster Join Date: Jun 2003 Posts: 1,644

22nd February 2004, 10:57 AM	#4
hammegk Banned Join Date: Jan 2002 Posts: 8,422	IIRC, the KKK and the NRA were founded in the same year. Are you sure you want to "register"? I think I'd go my gay and merry way as low-key as possible. That's just me, I guess.
hammegk Banned Join Date: Jan 2002 Posts: 8,422

22nd February 2004, 12:04 PM	#5
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	__________________ "I felt like putting a bullet between the eyes of every Panda that wouldn't screw to save its species. I wanted to open the dump valves on oil tankers and smother all the French beaches I'd never see. I wanted to breathe smoke.

22nd February 2004, 12:11 PM	#6
pgwenthold Penultimate Amazing Join Date: Sep 2001 Posts: 12,068	Quote: Originally posted by Zero "Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t" I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response."
	__________________ "Baseball is a philosophy. The primordial ooze that once ruled our world has been captured in perpetual motion. Baseball is the moment. Its ever changing patterns are hypnotizing yet invigorating. Baseball is an art form. Classic and at the same time...progressive. Baseball is pre-historic and post-modern. Baseball is here to stay." (Stolen from the side of a lava lamp box, and modified slightly)

22nd February 2004, 12:16 PM	#7
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	Quote: Originally posted by pgwenthold I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response." I think it is more than what you state...I think it is more about wanting to actually tear down America and rebuild it as a place where religious bigots can bully all three branches of government, instead of just being able to coerce two of them.
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	__________________ "I felt like putting a bullet between the eyes of every Panda that wouldn't screw to save its species. I wanted to open the dump valves on oil tankers and smother all the French beaches I'd never see. I wanted to breathe smoke.

22nd February 2004, 03:20 PM	#8
Tmy Philosopher Join Date: Oct 2002 Location: Republic of Massachusetts Posts: 6,489	Judges interpet the laws. So in Mass the marriage laws and contsitution were written in a way that allowed the Judges to interpret the laws to allow gay marriage. In other states the laws are written in a way that woudl not allow this. The funny thing is that the latest talk in Mass is that we shoudl elect Judges in order to prevent "judical activism". Of cousre wouldnt turning judges into politicians cause more judical activism???
	__________________ "Common sense is something that skeptics can and should do without." -shanek

22nd February 2004, 05:21 PM	#9
Some Friggin Guy Muse Join Date: Aug 2003 Posts: 860	Whoever said that "judicial activism" is a concept created as a lie by the right wing, is only half-right. The concept of judicial activism is real, however, it was created by the right-wing. If you assume an activist is someone who participates in some kind of active, though peaceful, demostration against the government, I think a pretty strong case can be made for Roy Moore to be labelled an activist judge.
Some Friggin Guy Muse Join Date: Aug 2003 Posts: 860	__________________ You think, therefore I am. "There is no hope for humanity. Reason is dead and we dance on the corpse. Tra la la la la! " - c4ts "What is the meaning of life? Monkey!" - c4ts

23rd February 2004, 07:57 AM	#10
Brown Penultimate Amazing Join Date: Aug 2001 Location: Twin Cities, Canada Posts: 12,150	People seem to be opposed to activist judges. And yet, it's really hard to find anyone who can intelligently define what an "activist judge" is. Perhaps the most common "definition" is "a judge that applies the law, and doesn't make the law." This is a naive and useless definition. All good judges make law. All good judges HAVE TO make law. Judges have to interpret and apply statutes, and that is a kind of "making law." Even when there are no statutes, judges have made law. In many states, the laws that hold a negligent person responsible for the consequences of his negligence, for example, are judge-made laws. You won't find those laws in the statutes passed by the legislature; you'll find them in the casebooks that report the decisions of the appellate courts. There are many other areas of law and settled legal doctrines that have been crafted by the judicial branch, one case at a time. Also, there is some confusion about which branch of the government "makes law." In general, the feeling is that the legislative branch is the only branch that should "make law." But in fact, all three branches make law. The branch that makes the most law is the executive branch, no question about it. Another useless definition of an "activist judge" is "one that does not abide by the will of the elected legislature." It has been part of American jurisprudence since the case of Marbury vs. Madison that the courts can declare legislative acts unconstitutional. Since then, the power to declare legislative acts unconstitutional has been generally considered to be valuable to the checks and balances of government. Besides, it is not uncommon for a legislature to pass a statute that is constitutionally questionable but popular with the citizens, with the legislature having a pretty good idea that the courts will not let the law stand. In other words, the legislature often relies upon the court to protect itself from foolish actions that are favored by the majority. Most charges of "judicial activism" lately have been bogus. The ones making the charges do not seem to know what "judicial activism" means. Perhaps they think it means that a judge made a decision that they don't like.
	__________________ Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice

23rd February 2004, 08:10 AM	#11
Cleon King of the Pod People Moderator Join Date: Aug 2001 Location: Atlanta, GA Posts: 20,519	This is very simple. An "activist judge" is a judge that, through the information presented to him/her, comes to a decision that may not be popular. I.e., finding that the Massachusetts law banning gay marriage violates the state Constitution provokes cries of "activist judges." (Never mind that most of the people whining about "activist judges" couldn't tell you what the Mass. constitution said or whether the law was constitutional or not).
	__________________ "People like me are what stand between us and Auschwitz." - Newt Gingrich

23rd February 2004, 08:16 AM	#12
Ladyhawk Muse Join Date: Feb 2002 Location: Somewhere over the rainbow Posts: 848	Re: Question about "activist judges" Quote: Originally posted by pgwenthold But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."? Hi, PG.... No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future. Gay marriage is a very emotional debate and is receiving a lot of attention right now, putting the spotlight on any decision being rendered by any judge. (For the record, I am in favor of gay marriage). Otherwise, you're asking judges to predict the future and rule on the basis of that prediction on current cases, regardless the issue. That can be a dangerous thing....
	__________________ "Does George Bush remember that he put his hand on the Bible and swore to uphold the Constitution ...not the other way around"? ~ Bill Maher

23rd February 2004, 08:29 AM	#13
pgwenthold Penultimate Amazing Join Date: Sep 2001 Posts: 12,068	Re: Re: Question about "activist judges" Quote: Originally posted by Ladyhawk No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future. OK, I back off the original comment to say that the constitution allows it, but it is still the case that the constitution is not clear on the issue. Thus, why blame the judge when the constitution needs to be fixed? Either the constitution is clear that gay marriage is wrong, in which case the judges would be making mistakes, or the constitution is not clear and there is room for alternate interpretations. If it's the former, then there is no reason to mess with the constitution. If it is the latter, then the "activist judges" are not the problem.
	__________________ "Baseball is a philosophy. The primordial ooze that once ruled our world has been captured in perpetual motion. Baseball is the moment. Its ever changing patterns are hypnotizing yet invigorating. Baseball is an art form. Classic and at the same time...progressive. Baseball is pre-historic and post-modern. Baseball is here to stay." (Stolen from the side of a lava lamp box, and modified slightly)

23rd February 2004, 08:31 AM	#14
Samus space hunter Join Date: Dec 2002 Posts: 1,003	An "activist judge" is one that rules by personal opinion rather than by what the law (to include the constitution) says. It's the buzzword de jour. U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. So, a state judge ruling that marriage can be defined as something else is trumping federal law, which is a no-no. Unless...the U.S. code trumps the constitution, which is the document from which all laws are derived and must be compliant under. So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution? If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court. If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law.
Samus space hunter Join Date: Dec 2002 Posts: 1,003

23rd February 2004, 08:41 AM	#15
corplinx JREF Kid Join Date: Oct 2002 Posts: 8,944	An activist judge is one that rules in favor of something you dislike.
corplinx JREF Kid Join Date: Oct 2002 Posts: 8,944	__________________ In the tradition of "Stop Silvia!" Stop Hal Bidlack: http://skepticalcommunity.com/forums...hp?f=1&t=28671

23rd February 2004, 08:44 AM	#16
Upchurch Papa Funkosophy Join Date: May 2002 Location: Funky Town (STL, MO) Posts: 23,424	Quote: Originally posted by Commander Cool U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. The question is, which takes presidence, the code or, say, the 1st and/or 14th Amendments (depending on how you look at it)? Interestingly, according to the above link, that code has only been in effect since 1947. Not that it was as socially acceptable as it is now, but does that mean it was fully legal for gays to get married prior to 1947?

23rd February 2004, 08:51 AM	#18
Cleon King of the Pod People Moderator Join Date: Aug 2001 Location: Atlanta, GA Posts: 20,519	Quote: Originally posted by corplinx An activist judge is one that rules in favor of something you dislike. In a nutshell, that's a very apt description.
	__________________ "People like me are what stand between us and Auschwitz." - Newt Gingrich

23rd February 2004, 08:51 AM	#19
Dancing David Penultimate Amazing Join Date: Mar 2003 Location: Central Illinois Posts: 34,708	Quote: Originally posted by Zero "Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t" The funny thing about this is that there is a lot of 'judicial activism' on the right as well, where judges makes rulings in favor of conservatives and take actions that benefit the conservative issues. When the EPA was squaleched in the name of property rights , a very good example, it was conservative 'judicial activism'. It is seen the most in lower courts, where say a judge awards vistation to an abusive man, just because the wife has done something to piss him off.
	__________________ Hell, dynamiting fish in a barrel is more challenging. - Ladewig I suspect you are a sandwich, metaphorically speaking. -Donn And a shot rang out. Now Space is doing time... -Ben Burch You built the toilet - don't complain when people crap in it. _Kid Eager

23rd February 2004, 08:58 AM	#20
pgwenthold Penultimate Amazing Join Date: Sep 2001 Posts: 12,068	Quote: Originally posted by Commander Cool So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution? If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court. If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law. I agree with everything you say. But this is the rub: in the State of the Union, for example, the president complained about activist judges perverting society, but then said we needed a constitutional amendment to outlaw gay marriage. If the judges were "activist judges" by ruling in favor of gay marriage, then that means that the current version of the constitution must not prohibit laws against it, and they were wrong to rule as they did. But if that is the case, why does the constitution need to be amended? As you indicate, the two concepts are mutually exclusive. Either the constitution currently allows for gay marriage, in which case it needs to be amended, or the current constitution does not allow for it, and it is a problem of activist judges. It makes no sense to claim both.
	__________________ "Baseball is a philosophy. The primordial ooze that once ruled our world has been captured in perpetual motion. Baseball is the moment. Its ever changing patterns are hypnotizing yet invigorating. Baseball is an art form. Classic and at the same time...progressive. Baseball is pre-historic and post-modern. Baseball is here to stay." (Stolen from the side of a lava lamp box, and modified slightly)

23rd February 2004, 09:02 AM	#21
hammegk Banned Join Date: Jan 2002 Posts: 8,422	Quote: Originally posted by Dancing David It is seen the most in lower courts, where say a judge awards vistation to an abusive man, just because the wife has done something to piss him off. Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level. I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too.
hammegk Banned Join Date: Jan 2002 Posts: 8,422

23rd February 2004, 09:04 AM	#22
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	Quote: Originally posted by hammegk Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level. I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too. In other words, we can expect judges to not do their jobs, and not uphold their oaths, just like "Judge" Moore?
Zero Graduate Poster Join Date: Dec 2003 Posts: 1,535	__________________ "I felt like putting a bullet between the eyes of every Panda that wouldn't screw to save its species. I wanted to open the dump valves on oil tankers and smother all the French beaches I'd never see. I wanted to breathe smoke.

23rd February 2004, 09:13 AM	#23
Samus space hunter Join Date: Dec 2002 Posts: 1,003	Quote: Upchurch: The question is, which takes presidence, the code or, say, the 1st and/or 14th Amendments (depending on how you look at it)? The derived right of "freedom of expression" and the 10th/14th amendments would always take precedence. The U.S. Constitution is the point from which all other laws must be derived from and compliant under. However, one must first prove that proscribing gay marriage is in fact a violation of said document. Quote: Upchurch: Interestingly, according to the above link, that code has only been in effect since 1947. Not that it was as socially acceptable as it is now, but does that mean it was fully legal for gays to get married prior to 1947? My guess, and this is just a guess, is it wasn't necessary to codify a definition before then. Pre-New Deal, the federal government had such a lesser role in people's lives, there was probably no compelling reason to define such a thing. However, I do not know the history behind that section of U.S. code.
Samus space hunter Join Date: Dec 2002 Posts: 1,003

23rd February 2004, 09:20 AM	#24
Samus space hunter Join Date: Dec 2002 Posts: 1,003	Quote: Brown: Except that this definition is limited to federal law: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States...." This definition provides a rule of interpretation of federal laws, but does not purport to supercede state laws. Right, but can a state re-define the term for their own purposes? State laws cannot trump federal law. This makes gay marriage as much a states' rights issue as it does anything else.
Samus space hunter Join Date: Dec 2002 Posts: 1,003

23rd February 2004, 09:24 AM	#25
Samus space hunter Join Date: Dec 2002 Posts: 1,003	Quote: pgwenthold: I agree with everything you say. But this is the rub: in the State of the Union, for example, the president complained about activist judges perverting society, but then said we needed a constitutional amendment to outlaw gay marriage. If the judges were "activist judges" by ruling in favor of gay marriage, then that means that the current version of the constitution must not prohibit laws against it, and they were wrong to rule as they did. But if that is the case, why does the constitution need to be amended? I think the president's stance would be that the lower-level judges should not be able to rule against federal law, and the move for a constitutional amendment is to prevent further trumping of said law. However, you are correct that the desire to explicitly disallow it seems to indicate those "activist judges" are merely pointing out that the U.S. code does not comply with the constitution. So he wants to change the constitution to fit the current U.S. code.
Samus space hunter Join Date: Dec 2002 Posts: 1,003

23rd February 2004, 09:38 AM	#26
Brown Penultimate Amazing Join Date: Aug 2001 Location: Twin Cities, Canada Posts: 12,150	Quote: Originally posted by Commander Cool Right, but can a state re-define the term for their own purposes? State laws cannot trump federal law. This makes gay marriage as much a states' rights issue as it does anything else. A state can adopt its own definitions, sure, and many (if not all) do. Doing so does not necessarily conflict with federal law, so there is no supremacy problem. You are correct that it is possible for supremacy problems to arise. For example, it is not uncommon for a state court to apply or interpret federal laws. It is possible for the federal law to include a term that defined one way by federal statute and a different way by state statute. In those instances, it would be error for the state court to apply the state definition. The state court must apply the federal definition.
	__________________ Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice

23rd February 2004, 10:38 AM	#27
Dancing David Penultimate Amazing Join Date: Mar 2003 Location: Central Illinois Posts: 34,708	Quote: Originally posted by hammegk Er, somehow I don't think many anywhere will agree that "activist judges" favor men's rights, at custody, or any, level. I agree Moore was & is an "activist judge". Get ready for a lot more of them that do not favor pc-lib agendas. Roe v Wade redux... what a mess that is kicking off, too. hammegk, I mentioned lower courts specificaly, and I am thinking of a particular judge here in a rura; county. this man brags about how many orders of protection he doesn't grant. He does act to preserve the custodial rights of men, very much so. In his county you can beat your wife and send the kid to the hospitla. And then you can still get visitation with your kid, he even overturned an OP that a mother had persued to protect the child, on the basis of not deny-ing the abuser thier rights. Get ready for a lot more of them that do not favor pc-lib agendas. Why get ready? They have been doing it all along! Judicial activism always has and always will cut both ways! Remember when the courts were into inion busting? I suppose that was liberal pc'lib. Geez hamme all the judges that have been appointed since Carter are by and large 'conservative'. More conservative whining? [digression] This doesn't even begin to look at the system that gives all sorts of breaks to the abuser (male or female), police officers act as a filters all the time as to wether or not a report is even made:they do not just make reports willy-nilly. Then the State's Attorney will almost never charge domestic battery, even when it clearly is domestic battery. Please bargin do away with most of what remains. So by the time that case is likely to ever go to court , the judge goes and does what theya re supposed to and protects the rights of all parties, but often they just ignore the eminent risk that thier choices make. this is why and how kids get killed every day, even though the reprts are made. judges will always act to return children, another example of 'judicial activism'. [/digression]
	__________________ Hell, dynamiting fish in a barrel is more challenging. - Ladewig I suspect you are a sandwich, metaphorically speaking. -Donn And a shot rang out. Now Space is doing time... -Ben Burch You built the toilet - don't complain when people crap in it. _Kid Eager

23rd February 2004, 10:50 AM	#28
VicDaring Muse Join Date: Jul 2003 Posts: 588	Give the right some credit on this one. They've taken an already divisive issue and couched it in simple, easily parroted, if vague, terminology. If you think gays are real Americans, with all the rights and privileges thereof, you're a "moral relativist." If you're a jurist who makes a ruling with that reflection, you're "an activist judge." Just hammer that home. Repeat those catch phases a couple thousand times. It's like the stations of the freakin' cross.
VicDaring Muse Join Date: Jul 2003 Posts: 588	__________________ The man in black fled across the desert, and the gunslinger followed.

23rd February 2004, 10:57 AM	#29
corplinx JREF Kid Join Date: Oct 2002 Posts: 8,944	Conservative Definition of Liberal Activist Judge: wants equal protection to mean equal protection Liberal Definition Conservative Activist Judge: Favors strict constructionism which means Roe V. Wade is a bad decision. Definitions for Moderates: Liberal Activist Judge: Give a criminal a big settlement for getting hurt in the home of his victim. Conservative Activist Judge: Makes a Ten Commandments Monolith As you can see, an activist judge is a purely relative term.
corplinx JREF Kid Join Date: Oct 2002 Posts: 8,944	__________________ In the tradition of "Stop Silvia!" Stop Hal Bidlack: http://skepticalcommunity.com/forums...hp?f=1&t=28671

23rd February 2004, 07:55 PM	#30
The Central Scrutinizer Penultimate Amazing Pither Join Date: Dec 2001 Location: The White Zone Posts: 42,275	Re: Question about "activist judges" Quote: Originally posted by pgwenthold A lot of the complaints about gay marriage is that so-called "activist judges" are reinventing terms. The response has been to propose amending constitutions to make sure they don't do that. One problem - there is no such thing as "activist judges".
	__________________ If I see somebody with a gun on a plane? I'll kill him.

24th February 2004, 05:56 PM	#31
gnome Philosopher Join Date: Aug 2001 Posts: 9,869	Quote: Originally posted by corplinx Liberal Activist Judge: Give a criminal a big settlement for getting hurt in the home of his victim. As usual I speculate that such settlments are a) extremely rare and b) often involve details not widely known that cause the verdict to make more sense. News media love to make a verdict seem surprising, and as such leave out the details that convinced the jury. I'm not saying never, and it surely sucks when it does happen, but how big of a problem is this? On the other hand, I have found one thing I agree with you on... "Activism" is applied to any judge that interprets the law differently than the complainer. "Plain meaning" = MY interpretation.
gnome Philosopher Join Date: Aug 2001 Posts: 9,869	__________________