[quote]thunderbolt23 wrote:
jsbrook wrote:
I will say that the more law you study, the more you see that justices of the right as well as the left are often activist too. Maybe not to the same degree. But they are.
Then enlighten us - point me to a recent “right wing” decision that created a public policy favored by the right that was a departure from the Constitution.
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There aren’t many recent decisions. Right wing judicial activists haven’t held the power for some time. HISTORY is replete with right wing judicial activism. I’ll give you several examples.
Right to the eve of the Civil War, for instance, the Supreme Court asserted the primacy of property rights in slaves, rejecting all slave petitions for freedom. In the famous Dred Scott v. Sandford (1857), the Court concluded that, be they slave or free, Blacks were a “subordinate and inferior class of beings” without constitutional rights.
Thus did reactionary judicial activists�??many of them slaveholders�??spin racist precepts out of thin air to lend a constitutional gloss to their beloved slavocracy.
When the federal government wanted to establish national banks, or give away half the country to speculators, or subsidize industries, or set up commissions that fixed prices and interest rates for large manufacturers and banks, or imprison dissenters who denounced war and capitalism, or use the U.S. Army to shoot workers and break strikes, or have Marines kill people in Central America�??the Supreme Court’s conservative activists twisted the Constitution in every conceivable way to justify these acts. So much for “strict construction.”
But when the federal or state governments sought to limit workday hours, set minimum wage or occupational safety standards, ensure the safety of consumer products, or guarantee the right of collective bargaining, then the Court ruled that ours was a limited form of government that could not tamper with property rights and could not deprive owner and worker of “freedom of contract.” The famous Lochner case. Universally condemned as innapropriate judicial activism and fanciciful construction of law by those of all political persuassions today.
The Fourteenth Amendment, adopted in 1868 ostensibly to establish full citizenship for African Americans, says that no state can “deprive any person of life, liberty, or property, without due process of law,” nor deny any person “equal protection of the laws.”
In another act of pure judicial invention, a conservative dominated Court decided that “person” really meant “corporation”; therefore the Fourteenth Amendment protected business conglomerates from regulation by the states.
By 1920, pro-business federal courts had struck down roughly three hundred labor laws passed by state legislatures to ease inhumane working conditions, claiming them to be unconstiutional. Decisions that are universally derided today.
Between 1880 and 1931 the courts issued more than 1,800 injunctions to suppress labor strikes. No trace of conservative restraint during those many years. Years when they had power.
When Congress outlawed child labor or passed other social reforms, conservative jurists declared such laws to be violations of the Tenth Amendment. The Tenth Amendment says that powers not delegated to the federal government are reserved to the states or the people. So Congress could not act. When states passed social-welfare legislation, the Court’s right-wing activists said such laws violated “substantive due process” (a totally fabricated oxymoron) under the Fourteenth Amendment as assuredly as many of the so-called ‘privacy rights’ created by liberal activits. So the state legislatures could not act.
**For more than fifty years, conservative justices used the Tenth Amendment to stop federal reforms initiated under the Fourteenth Amendment, and the Fourteenth to stymie state reforms initiated under the Tenth. It’s hard to get more brazenly activist than that.
A conservative Supreme Court produced Plessy v. Ferguson (1896), another inventive reading of the Fourteenth Amendment’s equal protection clause. Plessy confected the “separate but equal” doctrine, claiming that the forced separation of Blacks from Whites did not impute inferiority as long as facilities were equal (which they rarely were). For some seventy years, this judicial fabrication buttressed racial segregation.
Convinced that they too were persons, women began to argue that the “due process” clauses of the Fourteenth Amendment (applying to state governments) and the Fifth Amendment (applying to the federal government) disallowed the voting prohibitions imposed on women by state and federal authorities.
But in Minor v. Happersett (1875), the conservative Court fashioned another bizarrely contorted interpretation. They conceded that women were citizens but then claimed citizenship did not necessarily confer a citizen’s right to suffrage. In other words, “due process,” and “equal protection” applied to such “persons” as business corporations but not to women or people of African descent.
The concept of executive privilege was judicially constructed. Maybe a good one and necessary one to some degree. But the consitutional base is very tenuous indeed. And it’s certainly been abused. Executive privilege has been used by the White House to withhold information on undeclared wars, illegal campaign funds, Supreme Court nominations, burglaries (Watergate), insider trading (by Bush and Cheney), and White House collusion with corporate lobbyists.
The concept of executive privilege (i.e. unaccountable executive secrecy) exists nowhere in the Constitution or any law. Yet right-wing activists on the Supreme Court trumpet executive privilege, deciding out of thin air that a “presumptive privilege” for withholding information belongs to the president.
I would argue Bush v. Gore is a modern example of right-wing judicial activism. In a 5-to-4 decision, the conservatives overruled the Florida Supreme Court’s order for a recount in the 2000 presidential election. The justices argued with breathtaking contrivance that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. Please try and justify this one to me.
In recent years, conservative justices have held that the Fourteenth Amendment’s equal protection clause could not be used to stop violence against women, or provide a more equitable mode of property taxes, or a more equitable distribution of funds between rich and poor school districts. But, in Bush v. Gore they ruled that the equal protection clause could be used to stop a perfectly legal ballot recount. Then they explicitly declared that the Bush case could not be considered a precedent for OTHER equal protection issues.
We hear conservatives say that judges should not try to “legislate from the bench,” the way liberal jurists supposedly do. But a recent study by Paul Gewirtz and Chad Golder of Yale University reveals that conservative justices like Thomas and Scalia have a far higher rate of invalidating or reinterpreting Congressional laws than more liberal justices like Breyer and Ginsberg.