Judicial Review, Judicial Restraint, Judicial Activism and Rights

[Ian Murray]

NN:
> Note that in my earlier post on precedents, I argued that when
courts
> overturn precedents interpreting statutes, that is a form of
judicial
> activism since the legislature always had the power to overturn the
Court's
> interpretation and when they have not, there is a form of democratic
> acquiescence to the court's interpretation of the law.  However,
when a
> Court overturns a constitutional intervention of the past to restore
power
> to legislatures to act, that is of a very different nature, since
the
> legislature never had the power to overturn the court's earlier
decision.
=========
Doesn't part of this ignore significant time lags between the elected
officials who write the legislation into law and a decision over it's
constitutionality or lack thereof, coming 4, 10 or 20 years later and
the composition of the legislature has changed enough when a decision
comes down to make a fight a moot point, so that it looks like
aquiesence, when it's just turnover of membership/prerogatives?

Ian


>
> Just as the major Court decisions in 1937 that upheld the New Deal
were acts
> of judicial restraint, even though they overturned previous Court
> constitutional precedents, if the Warren Court had overturned the
Civil
> Rights Cases precedent, that would have been a similar restoration
of
> democratic power and an act of judicial restraint, not judicial
activism.
>
> My argument in my paper is that the interventions by the Court
around
> desegregation were mostly ineffectual, as shown by the incredible
> segregation maintained in public schools to this day.  But by
leaving the
> Civil Rights Cases on the books, it encouraged resistance to the
1964 Civil
> Rights Acts on constitutional grounds and forced their approval
based on
> "commerce power" grounds rather than on 14th Amendment grounds.
>
> Which left the precedent on the books for the Rehnquist Court to use
the
> still good law of the Civil Rights Acts to strike down the ADA, Age
> Discrimination Act, and Violence Against Women Act based on that
19th
> century judicial activism precedent.
>
> >Nathan treats the Warren Court as if it were an historical
accident, the
> >results of mistakes by President who chose justices far more
liberal than
> >they expected. But this is, IMHO, a too narrowly institutional way
of
> looking
> >at the Court. The Warren Court existed during a period of great
social and
> >political forment in the US, the last period of great progressive
movements
> >in our history. It could not but reflect those movements, as even
the Court
> >during the New Deal, stacked with conservatives, eventually had to
do.
>
> It also reflected the need for the US establishment to compete with
the
> Soviet Union ideologically; Apartheid segregation in the South was
an
> embarassment that most of the national elite was against, so the
Court was
> not acting in defiance of the elite but as its handmaiden, taking
the heat
> for decisions where Southern Democratic filibusters would block
action - not
> a bad reason for the Court to act, but hardly one reflecting
non-elite
> interests.
>
> Yes, the social movements had their effect on the Court, but they
had even
> greater effects on legislatures and Congress.  My point is that it
is far
> better for progressives to put their hopes and institutional
allegiance with
> democratic legislatures than with unelected judges.
>
> -- Nathan Newman
>
>