The Senate Judiciary Committe vote on the nomination of Judge Sonia Sotomayor's to the Supreme Court is scheduled for Tuesday 7/20 (this may change). One of the links belowhas audio highlights from the confirmation hearings ... or you can find your favorite site - YouTube has a good collection of highlights.
What is judicial activism versus judicial restraint? For those of you who have tuned in to the hearings ... did the nomination hearings give any indication of whether Judge Sotomayor will exhibit judicial activism or restraint in her rulings from the bench? Do you have specific examples?
http://www.npr.org/templates/story/story.php?storyId=106695138
http://www.npr.org/blogs/politicaljunkie/2009/07/sotomayor_cmte_vote_scheduled.html
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ReplyDeleteJudicial activism is when a judge is given the opportunity to reach beyond what the Constitution has stated and make a decision on a case based on his/her feelings about what the law should be.
ReplyDeleteJudicial restraint is when a judge reasons with the case at hand based on the constitutionality, thus upholding the law and hesitating to do otherwise.
To take the hearings of Sotomayer into context, I listened to it through the first link about at NPR and got the following quote from Senator John Cormin (?):
"Do you agree with Chief Justice John Roberts when he says, 'The best way to stop discriminating based on race is to stop discriminating based on race'?"
Sotomayer's response:
"The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all, and I follow what the Constitution says. That is how the law should be structured, and how it should be applied to whatever individual circumstances come before the court... The question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in, and I accept the court's ruling in that case, and that was a very recent case." She continued to say that it was a constitutional decision.
This particular scenario sounds like a judicial restraint to me. I'll have to listen to more of the hearing(s) to get other examples.
There is no definitive definition of judicial activism. It is such a politically charged subject that the definition will vary based on the political views of the person attempting to define it. Melissa gives a prime example of this: to her, activist judges "reach beyond" the Constitution, and use their "feelings" to decide cases. Judicial restraint, on the other hand, uses "reason" and "upholds the law." The implication is that the latter is legal, logical, and wise, whereas the former is temperamental, inconsistent, and even borderline illegal.
ReplyDeleteMy view is that judicial activism is characterized by decisions that run counter to established law and traditional interpretations. Restraint would be the converse, decisions that are marked by adherence to established law and traditional interpretations. This is as unbiased a definition as I can think of. Whether judicial activism is beneficial or harmful depends on whether you think it is the court's role to change those laws or interpretations. Was Brown v Board beyond the court's purview? Is activism only justifiable if the court is overturning it's own previous decisions? Is it ever activism when the court overturns a legislative decision in the name of traditional interpretations? Personally, I don't think whether the decision is activist or not determines whether it is correct or not. As with most political debates neither side has is entirely right.
Also, keep in mind that David Souter was nominated and approved by the Senate with the expectation that he would be an advocate for judicial restraint. That he ended up as a solid member of the activist block suggests that Senate hearing statements are a sketchy measure at best.
While the technical definition of Judicial activism sports a literal connotation implying that any public official who does not strictly adhere to the words of the Constitution is a political maverick, a deeper interpretation is needed to address the conflict surrounding Justice Sonia Sotomayor. In defense of her proposed method of judging, Sotomayor has stated that she will rely on her personal experiences in making her Supreme Court rulings. In doing so Sotomayor would utilize non uniform knowledge in her position as a Supreme Court Judge. As such, her individual rulings will rely on her opinion of the case at hand with secondary regard for the literal meaning of the law in question. This method could presumably allow for a socially corrupt decision to be made by an individual with a personal vendetta. However, if court decisions were made exclusively from the common "established precedent" then the need for a panel of nine individuals would be overkill as each case would have a unanimous vote. In comparison, the use of Judicial restraint has an equal affect on the outcome of a case. Traditionally, justices have used a "feelings free" method of judging; one that only uses the established laws as a rule for making a decision. With this method strict analysis of the Constitution has led to the legal implementation of past atrocities including slavery, Plessy v. Ferguson, and Prohibition. Therefore the use of Judicial activism must not be defined as the opposing or minority view that construes our nation's laws but as the all encompassing method to serving justice to the best interpretation of the law. Justice Sonia Sotomayor can be counted to make the same equally constitutional decisions as her counterparts regardless of her individual upbringing or interpretation of the law.
ReplyDeleteJustice Sonia Sotomayor's first case.
http://www.npr.org/templates/story/story.php?storyId=111614828
this is an article that explains this topic if any are having trouble understanding this!
ReplyDeletehttp://www.npr.org/templates/story/story.php?storyId=104755960
Although the term "judicial activism" has been around for nearly sixty years, the term is recently explained as a "judge who makes decisions not by law, but based off what the judge determines good policy", retorted Kermit Roosevelt III (a law professor of Penn. U). Judicial activism is making sense of supreme court decisions, which is how many describe Sotomayor herself.
ReplyDeleteJudicial restraint is difficult to directly define, but can be characterized as a "theory of judicial interpretation" that may encourage a judge to "limit exercise of their own power"(googled definition).
Despite being elected the Supreme Court Justice during the Bush Administration, Sen. Jeff Sessions of Alabama commented that Sotomayor "issued unacceptably short and cursory decisions that favored a liberal pro-government ideology..." In a FOX NEWS interview (Sessions vs. Sotomayor), Sen. Sessions claims that Sotomayor demonstrates an activist mentality, as she allows her personal beliefs/opinions to influence the decisions. He covers a few individual cases in which Judge Sotomayor rules for the state over the individual. In the Ritchie, Fire fighter, Second Ammendment, and a private property case, Sotomayer appears to rule for the state.
Here is a clip of the first public interview:
http://www.foxnews.com/search-results/m/25497814/sessions-vs-sotomayor.htm
Below is another site that debates Sotomayor and her radical tendencies.
http://www.npr.org/templates/story/story.php?storyId=106535268
Judicial Activism is simple put as “The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it” (Gary McDowell a state representative of Michigan). However, America has been shaped by the process of Judicial Activism, one of the most important and well-known cases being the 1905 case of Lochner v. New York. This case lead to the conclusion that the New York Bakeshop Act was unconstitutional because it violated “the right of the individual to liberty of person and freedom of contract.” Though, this right never appears in the constitution, it sprang from an interpretation of the due process clause in the 14th amendment, the Court was able to develop the doctrine substantive due process, or the power to examine laws in order to judge their fairness. The idea of Judicial Activism is unconstitutional due to the fact that a judge should be impartial and equal in all case, not allowing their personal beliefs to cloud their judgment.
ReplyDeleteJudicial Restraint one the other hand is the idea that judicial behavior should base decision on grounds that have been previously defined by judicial precedent and the constitution itself. This process allows the courts to stay consistent in their rulings. In my opinion both processes are needed in the courts but restraint needs to be shown more often to keep the courts from running out of control with inconsistencies that would only add more confusion to our modern day government.
In the case of Judge Sonia Sotomayor there is absolutely no doubt in my mind that she is a complete Activist. A quote from what is called a long and thoughtful speech reads “ I would hope that a wise Latino woman with the richness of her experiences would more often then not reach a better conclusion then a white male who has not lived that life.” This quotation screams Judicial Activism and on a lower note racism towards the non-Hispanic community. In my opinion comments like this have no right in our political system that to be based on equality.
Here is a link to an article that proves Sotomayor’s Activist tendencies
http://www.npr.org/templates/story/story.php?storyId=104775347
A case concerning jucdical precedent that will also be the 'formal' debut of Justice Sotomayor. The case will discuss corporations righs to fund campaign's. A bill was passed in 1990 that requries companies to funnel their money through campaign committees while others say this violates companies and corporations First Amendment rights of free speech and press in supporting a particular party or canidate.
ReplyDeletehttp://online.wsj.com/article/SB125193454105181373.html