NYTimes.com: Last Term's Winner at the Supreme Court: Judicial Activism

[Robert Sheridan]

So, if the Framers were so smart, why didn't they anticipate the need  
to rein in 'activist' judges who exercise the power of judicial  
review by which the Justices were later able to overturn unwise (in  
their opinion) decisions of the other branches and the state  
legislatures, as during the long Lochner era (1905-1937)

Oh, they didn't anticipate a power of judicial review, so how could  
they anticipate its exercise too actively according to political  
predisposition?  Alas.

Have we developed any useful rules governing degree of activism?   
Carolene Products?  Fn. 4?  Casey on stare decisis, ignorable at will  
by the current Court?  Gut-feelings of self-control among the Nine?

This, I think, is the problem with human-based government, as opposed  
to a faith-based one run by God.  The humans keep getting in the way  
of Justice, as I conceive justice, that is.  We're stuck.  With us.   
There must be a better way.

Divine right of kings, anyone?

How would you, meaning anyone on this list, propose to regulate  
'activism'?   We'd like the ordinary man in the street to be able to  
understand how first the conservatives under the Old Court were  
'activist' during the Lochner Era, and were decried by the liberals,  
and then the liberals were 'activist' (the Warren Court), and were  
decried by the conservatives, and now the conservatives again are the  
'activists,' and are again decried by the liberals.  Will this never  
cease?

This problem shouldn't be too hard to rectify, should it?

An amendment, perhaps?

What should it say?

"To avoid this Court becoming too 'Activist,' the Power of Judicial  
Review is for Emergency Use Only:  You may only overturn acts of the  
other branches or arms of government when [what?]."  Hang it as a  
sign on John Marshall's Big Axe, the one hanging in the Conference  
Room.  And strictly limit entry into the room...

I know, we've done that already, but still have the problem, don't we.

rs
sfls




On Jul 9, 2007, at 5:16 AM, s-gerber at onu.edu wrote:

>  	
>
>
>
>
> This page was sent to you by:  s-gerber at onu.edu
> Message from sender:
> I thought the attached op-ed might be of interest. FYI, the  
> libertarian wing of the conservative movement often applauds  
> judicial "activism" on behalf of individual rights. The journalist  
> fails to note this distinction. Scott Gerber Ohio Northern  
> University Law College
>
> OPINION   | July 9, 2007
> Editorial Observer:  Last Term's Winner at the Supreme Court:  
> Judicial Activism
> By ADAM COHEN
> Conservatives have forgotten that they are opposed to judicial  
> activism.
>
>
>  	
>
>
> 1. Editorial: The Road Home
> 2. A Hipper Crowd of Shushers
> 3. The Gregarious Brain
> 4. For Elderly Investors, Instant Experts Abound
> 5.  Op-Ed Columnist: A Profile in Cowardice
>
> »  Go to Complete List
>
>
>
> Copyright 2007  The New York Times Company | Privacy Policy	
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see  
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed  
> as private.  Anyone can subscribe to the list and read messages  
> that are posted; people can read the Web archives; and list members  
> can (rightly or wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070709/876cbc19/attachment.htm