Now that the Constitutional Lawyer and Professor, who doubles as the President of the United States. has declared that ruling the Affordable Care Act unconstitutional would be "Judicial Activism" it got me thinking. Exactly what is judicial activism? I always considered it creating interpretation of laws that created rights not guaranteed in the Constitution.

What are other people's definition of judicial activism?

The site dictionary.com does not have any definition to by. But I agree with David Strauss' definition.

http://en.wikipedia.org/wiki/Judicial_activism

David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.

Is President Obama correct in his view that this court is being judiciously activist? What evidence is that based upon?

Largely it's based on opinion rather than copper-bottomed fact, and I would tend to agree with Strauss' defintion, too. Which would mean that if the USSC does strike down the ACA then the President is correct.

The term has been used perjoratively, particularly aimed at 'liberal' judgements, and so has taken on a life of its own (as words that get co-opted into the American partisan battleground are wont to do).

There are arguments that Scalia has also brought his own personal prejudice to the table, given he has already been outspoken about provisions that are not actually contained in the ACA (even if they were proposed in earlier versions of the Bill or in amandments to it). Can we add that to 'judicial activism' as well?

Not only Scalia, but Sotomayor and Kagan as well.

Perhaps people should question whether the USSC is actually fit for purpose. I know it's Constitutionally mandated, but it has a history of odd decisions (from whatever your political standpoint may be).

Perhaps the issue is when the mandates coming from the USSC are not specifically written into the Constitution.

I do feel that the USSC has a position in the three branched Republic. Otherwise, the "tyrrany of the majority" could take effect. Brown v Board of education comes to mind.

Isn't there one member of the USSC whose wife is a paid lobbyist for a group actively involved in campaigning against Obamacare ? I forget which member it is, but it seems highly dodgy to me. You'd like to think that Supreme Court justices should be completely free of any hint of corruption or vested interest.

You are thinking of Clarence Thomas.

bbauska wrote:Perhaps the issue is when the mandates coming from the USSC are not specifically written into the Constitution.

I do feel that the USSC has a position in the three branched Republic. Otherwise, the "tyrrany of the majority" could take effect. Brown v Board of education comes to mind.

I'm not saying have no strong independent judiciary which can stop overreach the legislature and executive and guarantee the rights of minorities.

I'm saying that perhaps the way that the USSC is set up is not the best way to do it.

FDR expanded the SCOTUS after he felt there was "judicial activism" going down.
Obama always has that option. (As has every President)
As Spinal Tap would say, turn it up to 11....

I would be all for that if a Conservative was POTUS...

rickyp wrote:FDR expanded the SCOTUS after he felt there was "judicial activism" going down.

Actually he didn't.

He introduced legislation in 1937 to expand the size of the Court because it was striking down much of the early New Deal Legislation. However, the backlash against the idea, even in his own party, was immense. The bill was turn out of committee with a negative recommendation. It went down with a 70-20 vote against in the Senate. Luckily for FDR the need for the bill was removed when one of the conservative votes against his policies decided to retire.

Further, it is pretty much accepted that the plan was an unmitigated failure on Roosevelt's part. The bipartisan support most of the New Deal legislation had prior to the bill disappeared. Further, many Senator's from FDR's own party stopped supporting him. Further, the fight pretty much killed much of FDR's ability to rally public support behind his legislative agenda.

So if Obama would like to follow this example, I would love it.

Archduke, what about the fact that the court stopped knocking down New Deal legislation after the court packing plan? See http://en.wikipedia.org/wiki/The_switch ... saved_nine

Roosevelt might not have gotten the court-packing plan passed but he got what he wanted---deference towards his legislation

Speaking of judicial activism, The U.S. Supreme Court ruled this week that a person could be strip-searched by a a jailor without any individualized suspicion (regardless of the crime alleged to have been committed). There was another U.S. Supreme Court decision several years ago that held you could be arrested for not wearing a seat belt (this was a misdemeanor in Texas but carried with it no jail time). The California Supreme in interpreting that decision held hat you could be arrested for an infraction And since the police could arrest ypu for an infraction, then arguably they could search you and your vehicle as a search incident to arrest. Where is the outcry about these intrusions into a person's liberty?

I consider this an infringement on personal rights.

I understand (or am I wrong?) that the justices voted on the Affordable Health Care Act (well, the parts of the Act before them) as soon as the questioning was over....
And that the wait till June is for the opinions to be written. Which would mean that any posturing or politicking to influence them is past the point of effect, no? Right now, its all about positioning the result....
Obama will have a difficult time positioning this positiviely, but then again if it makes health care reform central to the election it might turn out well for him.... But only if he takes a position that is more clearly a step to "single payer". And has to say that its what the Consitution allows.....
In response Mitt will have what? (Its really unclear where he actually stands...)

The point behind the term judicial activism, and the poiticization of the Supreme Court, makes the comparison between the US and other systems of governance pointed. In few other western democracies has the position of the supreme court become as politicized. I quote:
Lu

ckily for FDR the need for the bill was removed when one of the conservative votes against his policies decided to retire:

Doesn't it seem odd that the interpretation of the constitution should vary so greatly depending on one's political viewpoint"? Shouldn't fundamental law be written so clearly that there isn't that much room for interpretation?
Or alternatively, shouldn't fundamental law be a little easier to revise and update then the US Constituion? It seems a supremely difficult document to change. Now, part of that makes sense, that fundamnental law shouldn't be easily edited... but over time the anachronisms that can creep in from an ancient perspective on a changed world do need to be addressed... The current process seems to daunt any change.
and

Archduke:
The bipartisan support most of the New Deal legislation had prior to the bill disappeared.

Do you suppose that losing bipartisan support" is a great worry for Obama? Since he's never had any

....
So what if he decides to try the same thing as FDR and threaten a change..... ? (I doubt he would though. He's not a radical.)