Is Scalia the most activist Supreme Court justice?

[SoCalCoug]

http://washingtonindependent.com/350/judicial-partisanship-awards

I ran across this today. While the conclusion matches my personal opinion, I think it's a good subject for discussion. (Uncontroversial conclusions don't make for good discussions.)

I think "activist" may not mean what many people who throw the term around seem to think it means.

[frank ryan]

yes

[Jacob]

So, first define the term "activist." By my definition, he's not even close. By any definition, he shouldn't be close to the most activist as there are judges on both ends of the spectrum that would make much more drastic changes to the current interpretation of the constitution i.e Thomas and Ginsburg/Breyer.

[SoCalCoug]

So, first define the term "activist." By my definition, he's not even close. By any definition, he shouldn't be close to the most activist as there are judges on both ends of the spectrum that would make much more drastic changes to the current interpretation of the constitution i.e Thomas and Ginsburg/Breyer.

Here's a good Op Ed (in my opinion) that addresses some of the ways Scalia has been an activist judge and actually gone against the plain language of the constitution. Do you have a response to the points made in this Op Ed?

http://www.nytimes.com/2005/04/19/op...tue3.html?_r=0

[il Padrino Ute]

Here's a good Op Ed (in my opinion) that addresses some of the ways Scalia has been an activist judge and actually gone against the plain language of the constitution. Do you have a response to the points made in this Op Ed?

http://www.nytimes.com/2005/04/19/op...tue3.html?_r=0

An op-ed written by a hard left progressive 7 years ago?

[SoCalCoug]

An op-ed written by a hard left progressive 7 years ago?

It's a good place to start. The points made in it should be easy to discredit.

[SoCalCoug]

So, first define the term "activist." By my definition, he's not even close. By any definition, he shouldn't be close to the most activist as there are judges on both ends of the spectrum that would make much more drastic changes to the current interpretation of the constitution i.e Thomas and Ginsburg/Breyer.

Here's another discussion of Scalia's judicial activism that I think is reasonable. (Pun intended).

http://reason.com/archives/2005/10/01/antonin-scalia-judicial-activi

[il Padrino Ute]

It's a good place to start. The points made in it should be easy to discredit.

I'm not going to waste my time reading what he has to say. But I won't say that Scalia isn't a judicial activist. He's no more or less an activist than anyone else on the Supreme Court, as they all have their own interpretations of the Constitution. They're humans and humans are biased.

I just happen to agree with most of what Scalia believes, so his activism doesn't bother me.

[venkman]

All judicial activism isn't equal. If it's judicial activism to undo 40 years of judicial activism and get back to a more original intent interpretation of the constitution then maybe he's an activist. That's ok by me.

[Dr. Heinz Doofenshmirtz]

It's a good place to start. The points made in it should be easy to discredit.

An interesting read, but I don't believe an entirely accurate one. First, the Court's 11th Amendment jurisprudence has long been a mess - this isn't an issue that originated with Scalia. However, it's important to remember that when the 11th Amendment was drafted, there was no such thing as "federal question jurisdiction" (the ability to get into federal court based on a cause of action originating in federal law, whether constitutional or statutory). Instead, there had to be "diversity of citizenship" - the two parties in litigation had to be from different states in order to proceed in federal court. Thus, the thinking goes that the 11th Amendment didn't address actions between a State and a citizen of the State because it didn't have to - there was no diversity of citizenship and therefore the federal courts couldn't hear the case anyway. When federal question jurisdiction was later instituted by statute, the reading of the 11th Amendment was simply expanded based on the well-established doctrine of sovereign immunity. I don't necessarily love this idea, but again, it's not like it originated with Scalia.

What really bothers me is the statement that "Conservative politicians insist that courts should defer to the democratically elected branches." That statement is false in its incompleteness; I would say instead that conservative politicians insist that courts defer to the democratically elected branches when the laws that they enact comply with the text of the Constitution. The Gun-Free School Zones Act and the Violence Against Women Act were both enacted under Congress' Commerce Clause power even though on their face neither the act of taking a gun near a school nor beating up a woman have anything to do with interstate commerce. It's pretty clear here that the writer is upset that the Court refused to play along with the ultra-expansive, extra-Constitutional reading of the Commerce Clause that had become so well-accepted over the previous half-century, not that they actually did something contrary to the actual text of the Constitution. The same thing can be said for the following paragraph that addresses Michigan affirmative action and Texas anti-sodomy laws - the writer reaches the wholly unsupported conclusion that because Justice Scalia reaches conclusions that he doesn't like, that must mean that he's not following the Constitution.

Bush v. Gore was a mess. Either the Florida Supreme Court or the U.S. Supreme Court had to act quickly in order to avoid months of protracted litigation that would have left the Presidency and the nation in disarray. I think Scalia is right that we did look foolish in the eyes of the world. I understand why some people are upset at how that case was handled, but given the facts at hand, I don't think there was an ideal solution. Again, though, to the author's point - it's not like there's text in the Constitution that dealt specifically with this situation, so one could just as easily make the argument that the liberal minority was the "activist" side in that case.

[BlueK]

Speaking of Scalia and his likely replacement, I thought this George Will piece was interesting. Sounds like he thinks Scalia was fundamentally wrong about natural rights and has hope that Gorsuch fits his view better on the issue. I think Will makes a great point here -- or at least I like what he says.

"The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." If you believe, as Robert Bork did, that this amendment is a meaningless "inkblot" you must believe that the Framers were slapdash draftsmen about this, and only this, provision. Scalia believed that "the whole theory of democracy ... is that the majority rules. ... You protect minorities only because the majority determines that there are certain minority positions that deserve protection. ... The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."

If that is the "whole theory" of democracy, then democratic theory is uninteresting. What is interesting begins with the institutional and cultural measures necessary to increase the likelihood that majorities will be reasonable and respectful of the natural rights of those in the minority. It is the judiciary's job to construe the "document of government" — the frame of silver — in the light cast by the apple of gold.

With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature. The Constitution is America's fundamental law but not its first law. The Declaration appears on Page 1 of Volume 1 of the U.S. Statutes at Large and it is at the head of the United States Code under the caption "The Organic Laws of the United States." Since the 1864 admission of Nevada to statehood, every state's admission has been conditioned on adoption of a constitution consistent with the U.S. Constitution — and the Declaration.

Gorsuch will occupy much of the jurisprudential space Scalia so admirably did. But having earned a doctorate in philosophy and jurisprudence at Oxford studying under John Finnis, author of the book "Natural Law and Natural Rights," perhaps Gorsuch will effect a philosophic correction."

http://www.investors.com/politics/co...lia-was-wrong/