While the White House and the President backtracked from Obama’s recent statements regarding the Supreme Court, Attorney General Eric Holder succeeded in reigniting the controversy by calling the comments about judicial activism “appropriate.” As I noted earlier, the effort of the White House to modify the statement of the President notably did not include a retraction of the judicial activism statement. Holder’s statement appeared to reaffirm that the omission was intentional.
Holder said that the Justice Department would comply with an order to supply a letter to the United States Court of Appeals for the Fifth Circuit explaining the President’s comments. I previously stated that I do not believe that the order was an appropriate response. However, Holder is wise to simply comply and presumably repeat the statements made by government counsel in oral argument (which should have ended the matter).
Holder’s statement on judicial activism will likely only further alienate some judges and possible some justices. Of course, such comments should not affect the vote of the justices. I do not believe that Justice Kennedy is the type to be influenced by such personal or professional attacks. However, the political advantage sought by the attack posed a serious risk to the legal position of the Administration. As I noted earlier, the Administration is playing for marginal justices not just on the individual mandate question but issues like severability. Name calling cannot help that situation — or the chances for the national health care law. It is also in my view unfair to the judges (and likely justices) who view the act as an unprecedented intrusion on federalism.
I believe that the President — and the Attorney General — should take the high road on such questions and affirm that people of good faith can disagree on these questions. Even if the President is inclined to denounce the motivations and professionalism of jurists voting against the act, the Attorney General should have remained more faithful to the legal system and simply said that he does not subscribe to such a view. He is after all the chief legal officer in the federal government and owes a special duty to the rule of law. He has every right to make a passionate case for upholding the law. He was certainly correct in saying that “Courts have the final say in the constitutionality of statutes” and that “Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people … pass.” However, Holder also should be a moderating force in recognizing that these are profound questions that have long divided jurists, lawyers, and citizens on the scope of federalism in our system. There are four justices on either side of the Court that consistently vote on opposing sides of constitutional issues. That does not make the conservatives any more of activists than the liberals. Both sides come of the Court with differing jurisprudential views on questions like federalism. They should hold clear views on such fundamental subjects. The question is whether their decisions are based on legitimate rationales and reasoning — even if we may disagree with their conclusions. In my view, Holder missed an opportunity — again — to separate himself from politics and defend a principle.
Source: Chicago Tribune
AnonomouslyYours2
Your first gave me two ideas. Make courts decisions to be subject to immediate “jury” review with yea or nay being their prerogative as elected representatives of the people. Chaos, but interesting chaos.
The second was based on a perhaps unclear understanding of the Swedish system, where party appointed laymen can override the judges opinion.
Seldom occurs but happens.
A question, has the ABA ever given an “annual report” on SCOTUS and declared them adequately “judicial”?
idealist707,
http://www.abajournal.com/blawgs/topic/u.s.+supreme+court
I don’t think the ABA will refrain from declaring SCOTUS adequately “jusicial.”
A third vote for “well said”, Mike S.
Very well said Mike.
Well said Mike.
Judicial Activision is the term applied by the Unreconstructed to those who wish to give a fair trial to someone under the protection of the 14th Amendment.
The criticism of the judges (who live quite well with socialized medicine called ScaliaCare) who wish to override Congress — as judicial activism is throwing the term back at the Unreconstructed folks–like the black guy who sported the Confederate Flag over his desk to demonstrate that he was Unreconstructed so that he could get ahead in life. So Johnny Danforthboy gets him appointed to run the EEOC and thence to the Supreme Court.
We used to call such guys uncle toms but now we call them Unreconstructed or if we want to get their goats then call them judicial activists. Which is all just a play on words and I am just a dog talkin.
TalkinDog,
The term Judicial Activism that you’re referring to isn’t in the same context as to how the term is being used for this discussion. This discussion doesn’t have anything to do with whether or not somebody is going to get a fair trial. Perhaps I gave the wrong impression in one of my earlier posts.
It has to do with whether or not the Supreme Court is overstepping it’s authority as the third branch of the government.
If we had not had the “coup” Mike refers to, we would not have had the wars, the financial debacle, and Roberts and Alito.
“I believe that the President — and the Attorney General — should take the high road on such questions and affirm that people of good faith can disagree on these questions.”
One cannot have it both ways, although one can always try. President Obama has been often criticized for not being forthright enough when speaking out about the extra-constitutional actions that have been done in the name of a nebulous “War on Terror”. He has been criticized for standing passively by while the needs of citizenship have bee trampled due to court rulings such as Citizens United and the most recent one on strip searches for arrests.
Since the ascension of the “B” movie actor to the Presidency, our judicial system has been packed by “judicial activists” trying to return us to the years before 1932. Their aim is to return us to a time when an elite patriarchy not only ruled this nation, but reveled in the misery of a majority of its people. This is true “judicial activism” and not that discussed by the Federalist Society via its purported legal scholarship in the service of the American Plutocracy.
While our country and its Constitution has been diminished by those who would hasten a return to Corporate Feudalism, there is really only one hope to stave off this oppression. That hope begins by stopping the bland acceptance that one side of this battle has any devotion to the ideals that created this country, but rather is devoted to Multi-National Corporate interests. By trying to work in a bi-partisan manner with those who have been destroying this country’s constitutional governance, Obama has weakened the cause of the 99% of the population.
This battle is not and never has been, about liberalism vs. conservatism. Eisenhower, Goldwater and Nixon wouldn’t recognize today’s “conservatives” and neither would most of the SCOTUS members now deceased. This is a battle between the U.S. Constitutionalists and Fascists (fascism is feudalism in modern trappings) over the future of this country. Taking the “high road” tacitly makes the assumption that the other side has an equal interest in reaching mutually acceptable conflict resolution. In this case one side will only accept total victory and to treat them with civility, only makes their very extreme positions seem reasonable, setting up a false equivalency. This is a SCOTUS majority that allowed a coup in 2000 and was brazen enough to declare it a decision that didn’t establish precedent. This boldly proclaimed that “good faith” was not their motivation.
Yeah, yeah, yeah, Eric. You also think it’s appropriate to not prosecute traitors and domestic war criminals and it’s okay to assassinate Americans without due process simply because some clown in Executive rubberstamps the idea as proposed by some other clown in Executive. Don’t be too upset if your opinion of propriety is found to be lacking.
Judicial activism is a term employeed by those who are “unreconstructed”. The term applies to those who do not agree with or recognize the legitimacy of the 14th Amendment which, along with the 13th and 15th Amendments was passed during the post civil war Reconstruction period when some souls were tryng to put the country back together again in a fashion which no longer recognized as legitimate a slave holding oligarchy. The oligarchy retrenched and grudgingly accepted the revolutonary noton of no slavery, except when they can put one back in slavery for a made up crime of vagrancy. The old oligarchy does all it can to pit the poor white trash against the freedmen. Being against the right of an individual to have a fair trial in a state court under the due process clause of the 14th Amendment is anathema. Hence, the code words and the uncle toms who embrace the Confederate Flag and post it over their lawyer desk in the Missouri Attorney General’s Office in Jefferson City, run by John Danforth in the 1970s, so as to demonstrate to the world and to advertise their repudiation of Reconstruction. I ask the class: who was that lowly Assistant Attorney General proudly proclaiming himself to be Unreconstructed and hence against such things as a fair trial for a freedman in rural Missoura?
First name begins with a C.
TalkinDog,
You seem to be taking a simplistic approach. I don’t think anybody has a problem with the 13th, 14th, or 15th Amendments.
My two trials referred to in my earlier post weren’t fair because the judges did whatever they wanted regardless of the prima facie evidence accepted into evidence as exhibits.
That is judicial activism.
People who think judicial activism isn’t alive and well are naive. I had a case where documentary evidence that is impossible to deny was ignored by the court and then ignored again by the appellate court. This documentary evidence that was accepted into evidence proved beyond doubt I wasn’t guilty of what I was charged with, but I lost the case anyway. The judges simply ignored what they didn’t want to see.
I recently had a different court case where heavily flawed evidence in the form of an audio CD was accepted into evidence over my objections. The audio CD was the only substantive form of evidence submitted in that case. It was blatantly obvious that the audio CD had been heavily altered (doctored) prior to being played in court. I lost that case at the appeals court as well.
In my experience, judges seem to think they have the “right” to do whatever they want regardless.
Harrumph
On what authority did the Fifth Circiut issue it’s order?
The President has a right to point out to the public that this Supreme Court is neither balanced nor fair. The Conservative members see themselves as the infallible champions of the Republican party. Some of the even used Republican talking points to question advocates. It is time to recognize that silence in the face of conservative outrageous acts like the recent decisions of this Supreme Court is no virtue.
As to the Fifth Circuit unless the is a clear and unambiguous legal basis for the order the President should ignore the order.
The conservative — or, more properly, reactionary — judicial activists on the Supreme Court cannot argue — as Professor Turley does — that “the liberal minority on the court does it, too” [in recording their dissenting opinions]. That constitutes the Tu QuoQue fallacy and does not refute the characterization. It merely admits implicitly that conservative judicial activists have company in the practice — which explains why the Tu QuoQue fallacy also goes by the name of “misery loves company.”
For the reactionary justices on the court to effectively refute the charge of “judicial activism,” they could, of course, eschew judicial activism. This they refuse to do, as they wish to enjoy the hypocritical luxury of castigating mythological “liberals” for what they do themselves with not just a vengeance, but with panache.
If the Supreme Court had an ounce of integrity and truly cared for the health and survival of the Republic, they would have overturned the draconian “Patriot Act” depredations on our freedoms as well as the so-called “Authorization to Use Military Force” against the government of Iraq, a country which manifestly had absolutely nothing to do with any of the phony rationales put forward by the Bush/Cheney regime for starting a war on the basis of venality, adolescent vainglory, and a raft of scandalous lies.
This partisan Supreme Court wouldn’t know a case worth hearing and deciding if one jumped up and helpfully woke them from their dogmatic slumbers. I can still hear the immortal names of Paula Jones, Linda Tripp, and Monica Lewinsky ringing in my ears along with memories of the ludicrous court behavior that compelled a sitting president to defend against a trumped-up perjury-trap civil suit on the grounds that it wouldn’t take up any more of his time than a Saturday golf game. Sure. No greater judicial farce ever humiliated our country in the eyes of the world. People the world over still haven’t stopped laughing at us over that travesty.
Come to think of it, given the rabid reactionary agenda of the crony-corporate court majority, perhaps President Obama should have referred to “judicial re-activism,” as the more appropriate term. Not that President Obama has anything against judicial activism when it furthers government secrecy and police-state oppression of the citizenry. But he does seem within his rights to use the term as hypocritically for his own advantage as the “Federalist Society” ideologues do for theirs. After all, misery — as well as corruption — loves company.
“….did not include a retraction of the judicial activism statement….”
Nor should it. If judges and justices considered “liberal” can be called activist by conservatives, the well documented activism of this High Court can and should be called out for theirs. Ludly and by everyone! Just calling out the Roberts’ court’s activism still ignores both Roberts’ and Alito’s assurances under oath during their confirmation hearings (perjury?) to abide by Supreme Court precedents.
Wish they would just get it all over with already.
Isn’t there enough kerosene to finish the presidency with inciting the federal courts along the way…..
Calling for the President to send a letter via his Attorney General seeking affirmation that the Fifth Circuit can do what most all agree it can do makes the Fifth Circuit look weak and insecure. Complying with this stupidity makes the President look weak and insecure. Do we really want the leadership of the world’s greatest nation to look weak and insecure? Congress and the Supreme Court needs to step up to call a halt to this sandbox dispute if only by some well-placed telephone calls. If not, I say bring on the constitutional crisis and let Judge Jerry Smith bear the brunt. It’s judicial grandstanding by unelected officials against the popular will.
Dredd is right to quote James Madison, but I’d respectfully offer another bit of wisdom:
“I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments. The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.”
– Speech in the House of Representatives, June 16, 1789
The key is that the justices are not people of good faith. Bush v. Gore proved that along with Citizens United and the recent strip searching case, to name a few.
The open verbal assaults back and forth exhibit further breakdown of the sort James Madison warned about when he said:
(The Greatest Source of Power Toxins?).