Tuesday, July 03, 2018


Judicial Activism Versus Judicial Restraint

Although I think the man is very intelligent, and I give him full marks for his pretty consistent support of the First Amendment, Law Professor Erwin Chemerinsky, now at Boalt Hall, (the law school at Berkeley), is still lefty blindered and somewhat ignorant of history. And he displays it fully here in an article (very long) called A New Era for the Supreme Court.

We'll just visit some of the low points. First, definitions: Judicial Activism is defined as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Judicial Restraint, on the other hand, is the opposite and defined as "judicial deference to the intent of legislation, strict interpretation of the Constitution, and strict jurisdictional interpretation of the law."

OK, on to the article. Professor Chemerinsky starts with this:
The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda.
No, not activist. Just the opposite; aggressively following what the Constitution demands.

Did the 5-4 victories for the Rule of Law involve the Justices finding  creating a new, hitherto unknown, Constitutional right in the Constitution out of the umbras and the emanations of the penumbras of the document because not a single word of the Constitution mentioned this so called right?

No, there was none of that.

Does the professor supply any evidence of activism? Let's look.

Regarding the Janus case, the professor writes:
But the Court also held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree.

Chemerinsky says this application of the heart of the First Amendment on free speech was activism because it would upset precedent (Oh my!) and tear up a lot of local laws regarding the forced political speech the previous decision (Abood) allowed. So overturning bad precedent is judicial activism? Good to know.

Regarding the travel "ban" case, Trump v. Hawaii, the professor writes:

By a 5–4 decision along ideological lines, the Supreme Court reversed these courts and upheld the travel ban. Writing for the Court, Roberts said that the 1965 law prohibiting discrimination in issuing visas was not controlling because of an earlier federal law that allows the president to suspend entry of “immigrants or nonimmigrants.” It is strange that an earlier law is seen as superseding a later one, especially when the purpose of the 1965 statute was to stop the federal government from having immigration quotas by country, which tragically kept many fleeing the Holocaust from entering the United States.

There are two different rules about statutory construction. One is "specific overrules general" and the second is "later overrules earlier."  I have never been able to perceive the circumstances that require one of the two to be employed rather than the other one. But more specific statements of law are held to overrule general statements passed into law at a later date. And it happens a lot. So it's not odd at all. And is there anyone arguing that Trump was trying to introduce "immigration quotas" by the temporary delay in granting entry visas to both those immigrating and those just visiting? No, of course not, so the original law allowing the President to do just what Trump did would certainly be more specific than the 'no discrimination' law designed to prevent quotas on immigration. It kind of jumps off the page to anyone not subject to political tunnel vision.

Erwin goes on: "Neither [Janus or Korematsu] had any basis in terms of national security. There was no evidence linking Japanese Americans to any threat to the country then, nor any linking immigrants from the designated countries to terrorism today."

But you don't have to have evidence of a crime or proof of evil intent to stop someone at the border. You can stop people when you have a situation where it is reasonable to take action because, in the case of Japanese-American internment, there was evidence of Imperial Japanese efforts to create from the Nisei spies and saboteurs, and in the current case, the governments of the named countries are so dysfunctional, that we could not trust anything the governments said, assuming the governments gave us any information at all, regarding their citizen who wants to come here. It is always good to know if the person who wants to travel here was in prison for Jihadi activities or not, narco-trafficing or not, sexual assault or not. Information like that helps us make rational decisions about handing out visas in the first place.

And here's the big finish: "What will it mean to have five very conservative justices whose jurisprudence is based on the Republican platform? I have no doubt that there will be five votes to overrule Roe v. Wade, five votes to declare all forms of affirmative action unconstitutional, five votes to eliminate the exclusionary rule as a remedy when police violate the Constitution."

Here is where the professor is his most partisan. An honest legal scholar would admit that Roe, and the pure bullshit it was based on in Griswold, was monumentally bad legal reasoning and a prime examples of judicial activism. Moving on, I can't help but think that, as Chief Justice Roberts wrote,“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So Erwin's complaints about stopping affirmative action seems to my ears to be supporting racial discrimination forever. (Sorry, Asians, you're just too talented and smart to let into Harvard). And haven't we hit Justice O'Connor's 25 year limit yet? And, finally, it has always been a close call whether the damage done by the exclusionary rule, releasing the guilty to create more victims of crime, outweighs the good it does in keeping the police honest. These are not questions based on any political platform but are the result of the law's interaction with the real world. An honest scholar would admit the lack of political content contained in dealing with these Constitutional questions.

So shame on Erwin for groundlessly accusing the originalists and Kennedy of partisan jurisprudence.

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