Name That Tune

Who would say something like this?

The free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.

Adam Smith? Milton Friedman? Ludwig Von Mises?

Nope. Justice John Paul Stevens. Too bad his understanding of Constitutional interpretation doesn't match his understanding of economics.

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Scott, I think that you

Scott, I think that you could make the "activism" aspect a virtue from a different perspective. It's the one branch of government basically insulated from political pressures like funding and constituancies. You wouldn't want to do a whole government that way, of course, but as an aspect of government I see some benefits. Now of course the Domhoff "elite" critique still applies and explains why you don't really see judicial radicalism, but judges are immune to the Friedman campaign-contribution effect.


And because the conversation

And because the conversation involves the Supreme Court and Lord Acton, I simply have to quote one of my favorite Scalia dissents:

""The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'curb the discretion of federal judges" is, of course, rhetoric rather than reality; no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.' The Court's temptation is in the quite opposite and more natural direction -- towards systematically eliminating checks upon its own power; and it succumbs." (Dissenting in Planned Parenthood v. Casey, 505 U.S. 833 (1992))"

Plat, What's wrong with


What's wrong with judicial activism? To reword a famous quip, judicial activism in the defense of the original meaning of the Constitution is no vice, and judicial conservativism at odds with the original meaning of the Constitution is no virtue.

Julian Sanchez had a great article on how we got to this point with regard to Raich and Kelo. The money quote:

These two decisions prompted outrage not because either was a radical departure from precedent —neither was—but because they called attention to just how many grains of precedent had been piled atop the terms "public use" and "interstate commerce," reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they're engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That's not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed, it's a sign that jurists need to be willing to step back and see the heap.

Whereas my more pessimistic

Whereas my more pessimistic view is that if Stevens refrained from reaching the result he wanted in a particular case, he did so because to make that decision would restrict his power in other realms where he would prefer to be an activist.

For example, in reference to Raich, the article states:

"I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

My reading of that is: "Though I'd really like to agree with you guys on this one, such a reading might restrict the Commerce Clause and all the stuff I want it to encompass."

Not quite a surprise there,

Not quite a surprise there, Micha. As I noted just over a month ago, Stevens wrote the majority opinion for Kelo, which quoted this very similar passage from Berman:

The public end may be as well or better served through an agency of private enterprise than through a department of government -- or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.

I'm inclined to believe that JPS does actually know a thing or two more than we do about interpreting the constitution, but felt compelled to reach a particular decision on a particular case and resisted the temptation to engage in judicial activism by stretching for one he (or you, or I) would have preferred.

So far as that goes, I once

So far as that goes, I once again recommend Epstein's Takings, wherein he endorses a far more activist judicial branch.

"Activism" is a red herring.

"Activism" is a red herring. A properly functioning supreme court should say "no" to the legislature far more often than it says "yes" (unless the legislature never violates the constitution of course, and what a wonderful world that would be).

Another difficulty in this

Another difficulty in this discussion and others like it is defining judicial activism. Is striking down legislature-enacted laws "activism?" If so, then activism qua activism surely can't be a bad thing, at least not if one takes Marbury as good precedent.

I think Scott's got it

I think Scott's got it exactly right. In both Raich and Kelo, I doubt the most of the majority justices really wanted that particular outcome, but they realized they'd have to vote that way because doing otherwise would have violated their expansive view of the Commerce Clause. In a sense it was principled, it was just a wrong principle.

I have a problem with

I have a problem with judicial activism either way because in Lord Acton’s famous words “Power corrupts, absolute power corrupts absolutely” and tolerance of judicial activism is giving them absolute power. Don’t you think it’s more likely to be used for evil than good?

Absolute power is taking it too far, but point taken. However, I don't find it convincing, because judicial activism's power is taken from the other branches, which, by the same maxim, is making them less likely to be corrupted.

A response to that might point out that the Court is more likely to centralize power than other branches, or less accountable, or something of that nature. I have not thought the argument entirely through.

tolerance of judicial

tolerance of judicial activism is giving them absolute power

Is it? The Court is still dependent on the executive to enforce its decisions, and Congress has a "nuclear option" in Section III.2.2 of the Constitution, to wit:

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Even if Congress's attempt to make such restrictions or issue such regulations led to a constitutional crisis, does anyone seriously think the Court might prevail? Judicial review is a right the Court gave itself in Marbury v. Madison, and only persists at the convenience of the other branches. Other than that, the Court's authority is pretty much limited to specific cases that come before it. That seems a long way from absolute power. Being dependent on the good will of the other branches, not to mention the people, is it really valid to assume that the Court will wield whatever power they do have more for evil than for good? Have they in fact done so in the past? There have been plenty of bad decisions and bad precedents, to be sure, but I'd still say the answer is no.

Jeff, this is getting rather

Jeff, this is getting rather silly, and I think you realize as much. I'm withdrawing.

True enough, Scott. What

True enough, Scott. What motive were you trying to attribute? Is it one for which my comments about demonization are less valid? Is it one to which the psychogenetic fallacy does not apply? Does JPS's motive really matter?

Indeed it is, but it says

Indeed it is, but it says nothing as to whether that motive is greed, malice, benevolence, or just trying to win a bet.

Scott, it's because I think

Scott, it's because I think "might restrict the Commerce Clause and all the stuff I want it to encompass" is a statement about motive.

Jeff, I agree with you,

Jeff, I agree with you, though I don't see why you're addressing these comments to me, as I suggested neither malice nor greed as a motive.

Scott: let's assume for the

Scott: let's assume for the sake of argument that the judges rendered the decision they did to preserve the Commerce Clause instead of due to the merits of this particular case. It's a reasonable thesis. What's not reasonable is the jump from there to insinuations of malice or greed. They might have felt that it was a legal or moral necessity not to render a decision that runs counter to prior interpretations of the CC. Is there anything wrong with that? Is that activist? No on both counts. Prior decisions on related matters should guide (not dictate) current decisions. You - and in this case I - might disagree with their interpretation, but the attribution of motive has no probative value. It's just demonizing people who happen to disagree.

Micha: there's nothing wrong with judicial activism. I was actually trying to poke a little bit of fun at people who always use that phrase in complaint. The real question is what kind of activism, and the issue here is precedent. On the one hand, it would be ridiculous to have every court try to practice its jurisprudence in a complete vacuum, ignoring previous decisions that have already covered the same ground and been subject to the same arguments. On the other, a total adherence to precedent is practically an invitation to unintended consequences. It's what we in computing call a hill-climbing problem. If all you allow is small steps upward from your current position, one wrong step - which at the time you make it leads to the highest peak visible - might end up leaving you stranded on a lesser peak. Sometimes you have to climb down to go up. Similarly, one wrong court decision, which might have seemed right at the time, can - if respect for precedent is too strong - put you on a path that ends up leading somewhere quite bad. I think that's exactly what happened with Kelo. Prior precedents, which seemed perfectly rational in their own context, left the court with a dilemma: either follow precedent to render a decision that even they felt uncomfortable with, or render one that not only strikes down specific precedent but undercuts the principle of stare decisis itself. We know how they chose. I still happen to believe they were wrong. I have argued for years that we have erred on the side of giving too much respect to precedent. On the other hand (again), the scavenger hunt called originalism is just as bad and textualism nearly so. What we need is judges who are activists on behalf of common sense, even though we disagree on what that is. That's why there are nine of them.

What’s wrong with judicial

What’s wrong with judicial activism?

I have a problem with judicial activism either way because in Lord Acton's famous words "Power corrupts, absolute power corrupts absolutely" and tolerance of judicial activism is giving them absolute power. Don't you think it's more likely to be used for evil than good?

I agree.

I agree.