To me, “activist” always just seems to say “doesn’t believe what I do about the Constitution”. I mean, really, see our resident Allen (I think it was him) who insists that Roe “read” a ‘new right’ (privacy) into the Constitution. Whereas, you know, I personally think that just because a right wasn’t spelled out in the Constitution doesn’t mean that we therefore don’t have it. It’s an “including but not limited to” list, in my opinion.

“Activist” just means that the judge makes decisions that they don’t like, in my opinion.

”...and bound largely only by a 221 year-old document…”

...which really depends on them to concede to be bound by it.  After all, in the end the Constitution says what they tell us it says.  And there is nothing short of being overthrown by one of the other two branches that can change the reality of their decisions.

Of course, the whole “judicial activist” label is just a bullshit way of condemning decisions the Reichwing doesn’t like. 

Let’s face it: if a majority decision by the SCOTUS proclaimed the 1st Amendment requires all Americans to be Southern Baptists, many wingnuts would be perfectly okay with it, especially if it harms Democrats or makes them angry…

Judges become “activist” because they are forced to do so.  They are often forced to do so because Congress was lazy in fleshing out it’s statutes.  They are often forced to be activist because some bureaucrat overreached him or herself.  They are often forced to be activist because our world changes and the old paradigm isn’t working anymore.  Generally, all judges are conservative in the true meaning of the word.  They don’t like to be forced out of their comfort zone of established precedents.  They are forced to do so by conscience or other necessity. 

Most often though, what wingers call “activisit” I call restorationalism.  They are bringing the Constitution back to what the framers really wanted it to be all along.  Or at least what they dreamed it could be someday.  Thus, what the Court was saying in Brown v. Board was not only that is segregation wrong now, it always was (or at least post 1865).  The were saying we were wrong before.

“Activist” is merely right-wing code for “not right-wing”. Pay no attention to their hypocritical bullshit on this (and certainly don’t waste perfectly good brain cells trying to construe it as meaning anything serious about jurisprudence).

If the Bush vs. Gore decision was “non-activist”, I’m the Sultan of Brunei.

Thank you for saying this. I will now e-mail this link to various assholes I know and say “This! Now STFU!”

The word “activist” has come to mean one thing and one thing only in the wingnut set: “supports the outcome of Roe v. Wade.

To them, that was the ultimate act of “judicial activism” (but Bush v. Gore was just a strict interpretation of the U.S. Constitution, right?).

They have since applied the words to other pet causes (like the Ricci v. DeStefano Connecticut firefighters case decided by the 2nd Circuit and likely to be overturned by SCOTUS in a month or so), but ultimately it began with Roe.

Jesse:

Actually, it doesn’t take a majority.  Cert. will be issued if four Justices want to hear it.

Jesse:

Actually, it doesn’t take a majority.  Cert. will be issued if four Justices want to hear it.

True, but they are still fairly selective about what they’ll grant certiori to - they get about 8,000 cases handed to them every year, but they only hear about 80 (1%) of all cases that come before them.

“Activist judge” pretty much just means “judge who will make liberal decisions.” It’s conservatives using obfuscatory language again.

What exactly do they think “judge” means anyway?  We really do have an ingenius system….a founding document, a set of laws—and judges as the safety valve for exceptions, changes, adjustments.  Judges are the human element, supposed to be wise, mitigating the system to keep it just.  _That’s their job_

Judges and ministers have a lot in common, particularly in relation to fundies.  Binary thinkers (fundies) like to think that the book of the rules (constitution, bible) is literally, simplistically applied, but it’s not.  It’s _interpreted_ by a particular minister/judge, to the best of their ability.  And if you don’t like how they interpret something, you call them “liberal” or “heretical” or “activist”.

s.

Yeah, “judicial activist” is pretty much “decision I don’t like.”

However, here’s a good California Law Review article that’s handy for countering wing-nut soundbite bs, though they are touchy about “facts” and “reality.”

Media Matters has a fabulous piece on just this subject.

It’s wingnut rhetoric AGAIN.  Definitions don’t matter at all.  Facts don’t matter at all.  Only liberal-leaning rulings can be activism.  All media has liberal bias.  Socialism=paying taxes.

You can’t argue on ANY point, because your argument is “well, see here are facts and data, and reality,” and their argument is “we hate you”—no matter what verbiage they’re spewing.

I’m having difficulty keeping up with the wingnut gameplan on Sotomayor.  The talking heads and unofficial leaders of the GOP are all screaming from the mountaintops about her as if she’s gonna be the worst SCOTUS justice in history, but the GOP Senators, for the most part, are all but conceding that she’s going to be appointed.  Senator Cornyn (R-TX) more or less said the other day that not only will they not filibsuter her, but that there isn’t even a real desire to even try to filibuster her.

So if it’s pretty much a foregone conclusion that she is going to be confirmed by the Senate, what exactly is it that the wingnuts are trying to do here?  Unlike elected officials, once you get on SCOTUS, you are pretty much on for good, so trying to damage her image won’t have a bit of impact on how she rules once there, because it won’t matter what they think of her anymore, since they’ll no longer have any real power to get rid of her (technically, a SCOTUS judge can be impeached, but only one ever has been - Samuel Chase - and even he wasn’t ultimately removed).

Who are they trying to hurt, here?

DTG in STL, for the television/radio heads, I would assume the furor is more of a ratings thing rather than a planned attack on someone that might have a snowball’s chance in hell. IDK.

So if it’s pretty much a foregone conclusion that she is going to be confirmed by the Senate, what exactly is it that the wingnuts are trying to do here?

Again, I refer you to Media Matters.  Boehlert’s theory is actually that it’s not even the wingnuts as much as the press encouraging them because they want a bloody, divisive Thomas/Bork battle, not a smooth sailing, uninteresting Roberts/Alito/almost-everyone-else battle.

I should clarify that the MSM press wants the battle so that they have something to do.  Besides, you know, that journalism crap.

Actually, it doesn’t take a majority.  Cert. will be issued if four Justices want to hear it.

True, but wth an asterisk—the reason 4 votes are enough is that 5 justices have not voted to change the rule.

Who are they trying to hurt, here?

It’s a fundraising opportunity more than a genuine attempt to derail Sotomayor’s appointment.  Direct-mail flyers and fax blasts and e-mail action alerts screaming “THE [elided] ARE GONNA MAKE US.  THEIR.  SLAVES!!!!!!!!  THE [elided] ARE GONNA RECONQUER ARIZONA!!!!!eleven!” bring in buckets of cash from racially insecure white people.  There’s a lot of anxiety out there that the brown people, if allowed equal access to social/economic/political power, will do unto white folks as was done unto them.

The Republicans in the actual Senate benefit because they feel like they’re sending a message to Obama and the Democrats: “This is what we do when you nominate a stupendously well-qualified center-leaning judge with a record suggesting minimalsim more than anything else.  Just imagine what we’ll do if you put the name of an actual progressive out there.  WE ARE RELEVANT DAMMIT PAY ATTENTION TO MEEEEEEEEEEEEeeeeee…”  It may be hard to picture how it could be worse, but it so could be.

I should clarify that the MSM press wants the battle so that they have something to do.  Besides, you know, that journalism crap.

Yeah, Christ knows it would be totally unfair to expect these assholes to DO THEIR FUCKING JOBS.

Sigh. How long do we have to wait for the MSM to finish going out of business?

Siobhan has it right—these aren’t arguments over policy in good faith, they’re just relentless expressions of hate.

Once I understood that there was and remains no serious right-wing policy agenda other than hatred of liberals, women, and brown people, the arguments got a lot easier to follow.  Hypocrisy in argument is a virtue at that point, as it just illustrates the depth of the arguer’s hatred, and therefore the depth of their commitment to the conservative philosophy.

Crap, forgot hating gays.  Man, do they hate gays.

It reinforces panic and helplessness and the NEED to be the people who get out and help fix this horrific situation the next time around.

This is true, and it scares the CRAP out of me.  See, my progressive friends are unhappy, but most of my friends fall into the “liberal” “I heart Obama and we’re in power” camp.  And Dems have a bad history of getting complacent right away and not voting.  “Whew, we’re in charge again!  The crazies are defeated!  We can relax!”  Meanwhile the crazies are out there rallying and raising money and wingnutting their little hearts out, and we lose Congress in 2010.

My big hope is that the MSM manages to scares the crap out of even the “liberals” by giving so much voice to the wingnuttery.

Who are they trying to hurt, here?

I’m not sure they’re trying to hurt, but just trying to get the base nice and steamed up for 2010.

That makes sense, though I don’t know that it’s so much about getting them nice and steamed as it is about keeping them that way.  The base has been “nice and steamed” ever since it became apparant last fall that they were going to lose the White House.  And they haven’t stopped being “nice and steamed” since then.

Still, I am stunned that the idiots in charge think that this can be even a remotely winning strategy.  The whole point of Sarah Palin’s nomination was to bring the wingnuts to their feet to scream “terrorist” and “Kill him!” at their rallies, and ultimately it backfired wildly - sure, it made the base more enthusiastic about voting for a guy they couldn’t stand (McCain) knowing that she was on the ticket (and he was really old), but ultimately it drove away far more voters than it brought in.

And the same will hold true with this exercise, and all of their silly efforts going back to the tea parties - they are very, very effective at rousing up the wingnuttiest part of the country, and sadly even pushing them to commit brutal crimes (the murder of Dr. Tiller), but electorally speaking, this stuff is toxic as hell.  During Reagan’s era, much of Clinton’s era, and in the early part of Dubya’s presidency following 9/11, the GOP had a lock on the moderates and centrists in this country, which is why we kept getting our asses handed to us year after year.  But having achieved a taste of sustained power, they pushed their agenda just too far, and it led most of the centrists in the country to scream in unison “Enough!”  And now in their 2008 postmortem activities, everything they do seems to reflect an attitude which indicates that their internal analysis is not that they were too conservative in 2008, but not nearly conservative enough.  And thing is, I really think people like Rush Limbaugh believe it when he claims that the GOP’s only chance for revival lies in being even more vile and reactionary than they have been.

How they can be that truly delusional boggles my mind.  Why is it that they utterly fail to see that not only are their ideas misguided, dangerous, and ideologically extreme - but they just aren’t very popular anymore?  The GOP lost in 2008 because it had become too extreme for a changing America.  Just how exactly do they plan to win anything if their strategy is to make the party even more extreme by 2010?

The word “activist” has come to mean one thing and one thing only in the wingnut set: “supports the outcome of Roe v. Wade.
To them, that was the ultimate act of “judicial activism”

That started well before Roe with Brown v. the Board of Education.  Wingers wanted Warren impeached for that decision.  States rights!!!  Or something.

Most often though, what wingers call “activisit” I call restorationalism.  They are bringing the Constitution back to what the framers really wanted it to be all along.

That’s kind of looking at the Framers with rose-colored glasses.  Many of our founders hated Marbury v. Madison, which established judicial review.  It incensed them that the Supreme Court took the power to determine constitutionality of laws for itself.  I’m not sure what they thought SCOTUS was supposed to do/be without that power, maybe just a glorified contract law court?

I’m not sure what they thought SCOTUS was supposed to do/be without that power, maybe just a glorified contract law court?

I couldn’t say about what the propertied white men who wrote the Constitution had in mind, but the propertied white men who make up the bulk of people calling themselves libertarian certainly wouldn’t mind SCOTUS being reduced to just that.  Because hey, if you sign a contract with a credit card company it means they can’t possibly be predatory because contract.  And everyone who participates in a contract does so with perfect equality of power and transparency, right?

Keshmeshi:

While it is true that some, including Jefferson, complained about Marbury it is also true that the Court assuming such jurisdiction should not have been a surprise to anyone.  Who else could possibly decide the Constiutionality of statutes; the same people that passed them?  Where would the checks and balances so dearly thought of be?

Alexander Hamilton said this is Federalist Papers No. 78

” A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

So if it’s pretty much a foregone conclusion that she is going to be confirmed by the Senate, what exactly is it that the wingnuts are trying to do here?

They’re also undermining the apparent legitimacy of the government so that more people will go the McVeigh/Roeder route. If you know that the supreme court is really just a left-wing stooge show (!) then ignoring its rulings and those of other government entities seems like that much of a better idea. When they’re in power, right-wingers undermine the government by making it corrupt and incompetent; when they’re out of power, they do it by screaming that no judge appointed by a democrat or law passed by a democratic congress can be legitimate.

Let’s also remember some things when we bring up the founders, and what the founders intended:

1.  Only White, Male, Landowners would have votes
2.  There was a bitter fight THEN over states vs. federal rights
3.  They couldn’t even agree on how the representation should work (equal vs. population-based) which is why we have 2 houses.

And these are the most unnuanced, easiest-to-explain-to-fourth-graders disagreements.  The almighty holy founders were not omniscient, and disagreed on many, many aspects of the constitution.

Also remember that the Bill of Rights was an AFTERTHOUGHT.  An “oops, we totally spaced on these.”

1.  Only White, Male, Landowners would have votes
2.  There was a bitter fight THEN over states vs. federal rights
3.  They couldn’t even agree on how the representation should work (equal vs. population-based) which is why we have 2 houses.

Not so, in any case.

1.  Show me where it says that. 
2.  The fight was basically over.  The Articles of Confederation were a failure. 
3.  The reason there are two houses was that the “small” states would not accept proportial representation in a unicameral house; hence the Senate.  They would not have ratified it.

The Bill of Rights was not an afterthought.  Once again, several states would not have ratified without it.  Not that there wasn’t a helluva fight over it.

I don’t agree on the Bill of Rights—its eventual enumeration was an explicit condition of the passage of the Constitution in the first place.

“Also remember that the Bill of Rights was an AFTERTHOUGHT.  An “oops, we totally spaced on these.””

It wasn’t an afterthought.  Most of the FFs considered it to be frivilous, since states already included bills of rights, so why waste ink being repetetive?  “Afterthought” implies they didn’t consider it until right at the end.  They considered it and rejected it - it was only to smooth ratification that the federal BoR was included.

And yes, they were prety neanderthalian in their societal views.  But they were also just about was radical as you could expect at the time.  Plop them down today as-is and they would probably be rather Republican; plop them down adjusting for political drift, and several would want to string Obama up for being too conciliatory to the GOP.  Remember that the only other group that thought government could work sans self-appointed, inbred bastards were a bunch of bomb-throwing French (and some Carribean slaves a bit later) - even the British thought you had to have a drooling imbecile with 3 too many chromosomes playing with himself in the cornor or all of civilization would implode.

”...even the British thought you had to have a drooling imbecile with 3 too many chromosomes playing with himself in the cornor or all of civilization would implode. “

...and 200+ years later, Bush Jr. burst onto the scene to prove the British got it backwards…

Magis,

1.  Probably have to concede that one.  While the USConst doesn’t make mention of it, most states excluded most of the population from voting.  The FFs knew it, and made no plans to stop it.  So, the practical effect was the same as if they had put it in there (witness that we had to have Amendments specifically including groups for voting in the BoR to make over-ride states being dicks.

2.  We see today that the AoC was a failure, but many people still thought it was basically workable.  The meetings that led to the Constitutional Convention were supposed to be work-groups to fix the AoC, not replace it.  A couple of delegates even balked when the FFs decided to scrap it.  Heck, even the ratification process was a work-around for the established amendment process for the AoC, because the FFs didn’t think they could pass it properly and so decided to pull a bait-and-switch.

3.  The Viginia Plan included 2 legislative bodies (the small-state plan had only one).  Considering the Colonies already generally had miniture versions of Parliament, the idea of 2 houses was already pretty ingrained.

Dude, that’s fucking brilliant! I never thought of it that way, but you are totes one hundred bajillion percentolino RIGHT! It’s the Supreme Motherfucking Court. If they are hearing a case, they’ve got no fucking choice but to “act”.

Any decision that favors the strong and well-connected is based on following the law. Scalia never developed empathy for Dick Cheney, even while riding on Air Force Two for the duck hunt Scalia organized for the two of them. Empathy applies only to the poor, not to oil equipment suppliers or corporations.

Hector B is right. When the current crop of pro-business white guys decides that any punitive damage award that actually, y’know, punishes a corporation for its wrong doing is unconstitutional, they’re not doing it out of empathy for the poor beleaguered managers and shareholders, they’re doing it because it’s a corporation’s God-, uh, Constitution-, uh, dictum-given right as an individual to chalk up whatever vile acts it commits to the cost of doing business. They certainly couldn’t see themselves as a bunch of late-middle-aged and elderly corporate titans feeling inconvenienced by those revolting peasants.

phalamir, thanks for stepping up for me.  leaving work, grocery shopping, too much time away from my computer screen. 

However, I will add a couple of things:

1.  Since blacks were, in fact, considered 3/5 of a person, for population determination, I think we can safely say non-whites were not expected to vote.  And it’s true the constitution does not explicitly deny women the right to vote—that was so assumed that it wasn’t needed.  As phalamir pointed out, non-white-male groups had to be specifically granted the rights.

My biggest point with (2) and (3) was that the founders argued about these.  Disagreed on many, many levels about many many things, including these.  They were NOT infallible, they were NOT omniscient, and quite often their “real intention” was to get the damn thing passed, so they compromised in a lot of areas.  I think it’s wonderful—it’s a terrific example of how government is supposed to work.  But person A saying “The founders meant X” and person B saying “the founders meant Y” are very likely both exactly right (depending on which founder they are referring to). 

And yes, referring to the Bill of Rights as an “afterthought” was, possibly, inappropriately flip.  However, the point it that it had to be added because the states demanded it.  The document that is so desperately all-important to the basis of our legislative philosophy was added later by the “founders” because the “people” at the time demanded it.