Activision

What the liberal media doesn’t get, never got, and will never get, is that the phrase “judicial activism” can only be properly ascribed to “liberal” judges. But yesterday they went ahead anyway and authored an editorial with bias towards facts.

>Conservatives like to divide judges into liberal “activists” and conservative nonactivists who interpret the law rather than making it. Anyone who follows the courts knows that conservative judges are as activist as liberal judges —just for different causes. A new study of Supreme Court voting patterns confirms this and suggests that the conservative Justices Antonin Scalia and Clarence Thomas are actually more activist than their liberal colleagues.

What is a judicial activist? It’s a justice who

>voted to overturn a federal or state law, or one of the court’s own precedents.

On that argument, it follows that

>The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress. Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer.

In those cases I bet they had good reason, or thought they did. That’s why they write opinions. So thankfully the editorialist points out that

>Activism is not necessarily a bad thing. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. Clearly, all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws. What is wrong is for one side to pretend its judges are not activist, and turn judicial activism into a partisan talking point, when the numbers show a very different story.

“A partisan talking point” is right, and it’s a paltry substitute for an argument. Worse than that stands for the sneaky ad hominem circumstantial. So it means something like “a not well grounded opinion–because motivated by unjustified partisanship.” We suggest as a result that the The New York Times ought to enforce the rules of rational discourse and no longer host on its editorical pages the parade of bozos who substitute such nonsense of argument.

10 thoughts on “Activision”

  1. I’m glad the chosen definition of “judicial activism” used for the arguemnt is presented it’s kind of key to the argument. This chosen definition is not the one I would use at all.

    Wikipedia lists the following: Judicial activism describes an act of judicial interpretation that critics consider to take on suspected political reasoning, rather than an evaluation of applicable law.

    So the argument presented here seems to use a fallacy of a false statement or redefinition (my formal understanding of fallacies is not very strong which is one reason I’m interested in this site) as the definition used in this NonSequitur is certainly not a definition that a conservative writer would be using.

    Wikipedia also states: “The usefulness of the phrase has recently been called into question by liberals and conservatives alike.”

  2. That might be the definition of “judicial activism” that a conservative writer uses, but that’s just the problem. Anyone who critiques the person making the argument–rather than the argument–and then concludes the argument is wrong is guilty of the ad hominem fallacy. So whenever instead of evaluating judicial reasoning one uses supposed intentions of the judge (without reference to measurable standards–as the author of the recent study) one is guilty of the ad hominem circumstantial. Judges issue lengthy opinions; if the arguments are bad, then it is up to the critic to show them to be bad–not to question the motives of the judge in having them.

  3. Did I misread the original post? On further review it looks like NonSequitur is slamming the writer of this editiorial?

    I’m not understanding the use of the assignment of ad hominem circumstantial.

    To me the glaring error is changing the terms used by conservatives. The commonly accepted definition of conservatives is NOT “overturning a federal or state law”. So Lori Ringhand (a professor at the University of Kentucky College of Law) has done a study posting an argument by substitution of a generally understood term with one of her own choosing. I saw no reference of where Ringhand’s , “…reasonable, objective standard…” came from.
    This is a semantical trick and not good logic for a study. What is the proper term for the fallacy I’m referring to here?

    Here’s my gross exageration of the article in the NYT to illustrate my point.
    Because Nazism is is a vague concept I’ll use a reasonable and objective standard. Legislators will using the government to improve people’s lives will be called Nazism.
    So we can see that Democrats and Republicans are equally likely to use Nazism.
    Nazism is not necessarily a bad thing.
    Clearly, all politicians from across the political spectrum, use Nazism.
    What is wrong is for one side to pretend its politicians are not Nazis, and turn Nazism into a partisan talking point, when the numbers show a very different story.

    I don’t think I understood you were slaming the authors logic on my initial read.

  4. Dang it. The second sentence of the 3rd Paragraph is supposed to say, “The commonly accepted definiton of JUDICIAL ACTIVISM is NOT….” Shoot, falling all over my “conservative” self.

  5. Dear CJ Cox,

    Thanks for the comments. You’ll notice we’ve replied to some of your concerns elsewhere in comments (and in a few posts). The intent of the original post on judicial activism was to applaud the author of the study (and the editorial) for asking important questions about a much (mis)used allegation. As I see it, people invoke “judicial activism” as a shortcut to saying “legal opinion motivated by unwarranted partisaship with no basis in the law as it should be read.” To me this seems like something that can at best be the conclusion of an analysis of the legal opinion in question. Furthermore, it’s a conclusion that will be very difficult to support, as most judges give legal arguments for their views. Their legal arguments will have to be so bad that they poorly cover what really motivates them–their political prejudices (whatever they are). That seems so difficult to prove (the true motivations of a judge) than we’re all better off just sticking with either a precise definition of “judicial activism” (the one cited by the article–overturning duly enacted laws) or abandoning in favor of more detailed discussions of the shortcomings of some legal opinions. If the opinion is wrong, say why it’s wrong on the merits, in other words. In all of this I don’t mean to be tricky and redefine “judicial activism.” I’d be curious to hear another definition of judicial activism–one that avoids psychologizing about the circumstances of legal opinions (thus the ad hominem circumstantial: e.g., you only decide that way *because of your partisanship*, so your’re wrong). A judge is wrong because she misapplies or misinterprets the law. Not because she’s partisan. Thanks again for the comment.

  6. I think you are evading an essential and critical point on this whole article. The author of the study, Lori Ringhand, perpetrated a HUGE and glaring fallacy that you seem willing to overlook. The changed the commonly understood meaning of a term and then collected evidence to prove her point.

    Go to Google the terms “Judicial Activism” and “Definition” and see how long it takes you to come up with the definition she used. I couldn’t find such a definition.

    I completely agree with you that merely throwing the term “judicial activist” at a jurist to refute there case is not a good logical argument. However, when the term is used by a writer there is often extensive eveidence to believe that the judge has exhibited the behavior in question. As Brennan and Breyer frequently discuss the place of activism in there philosophy it seems reasonable to ascribe it to them. Breyer citing foreign law in his arguments is a clear case of judicial activism as understood by the typical conservative.

  7. I think you are evading an essential and critical point on this whole article. The author of the study, Lori Ringhand, perpetrated a HUGE and glaring fallacy that you seem willing to overlook. She changed the commonly understood meaning of a term and then collected evidence to prove her point. That would seem to be a capital offense in the eyes of an advocate of Logic.

    Go to Google the terms “Judicial Activism” and “Definition” and see how long it takes you to come up with the definition she used. I couldn’t find such a definition.

    I completely agree with you that merely throwing the term “judicial activist” at a jurist to refute there case is not a good logical argument. However, when the term is used by a writer there is often extensive eveidence to believe that the judge has exhibited the behavior in question. As Brennan and Breyer frequently discuss the place of activism in there philosophy it seems reasonable to ascribe it to them. Breyer citing foreign law in his arguments is a clear case of judicial activism as understood by the typical conservative.

  8. Dear CJ Cox,

    I think the author of the study was attempting to overcome the hurdles posed by the inherent partisanship of the common allegation. That’s not a fallacy. It’s just a definition that doesn’t square with yours. It would be a fallacy if she played switcheroo on the terms and claimed she has explained yours. So you’re right we may be talking about different things. In any case, here is a link to what looks to a be a helpful series of articles on the topic: http://writ.news.findlaw.com/dean/20050617.html. The article alleges that there is no clear sense of the term. As a result it would be false to claim there is a common understanding of the term–even among conservatives. See especially Scalia’s comment referenced in the article.

    Thanks again for your participation. Please feel free to comment. If in the future we fail to reply, know that it’s only for lack of time.

    jc

  9. I know you’re board with this. I’m tired of trying to beat an acknowledgement out of you.
    I read your link. The definition used in the study is not to be found in that article. Not even close. The definitions in that article were all somewhat similar.
    Here is another article (long 40+ pgs) that does a better job at hammering the definition out. http://www.tsowell.com/judicial.htm
    The whole article here is based on a huge “straw man” which far outweighs a justifiable criticism that “judicial activism” is sometime used in an ad hominem fashion.
    I know, you’re sick of this, I’m testing your intellectual honesty here. Maybe it’s not worth my time to contribute despite your generous encouragement. It’s not satisfying if I can’t win on an obvious point.

  10. Dear CJ Cox,

    The link in the Dean article to Kmiec seems dead. Doug Kmiec (as you probably know) is a conservative scholar who takes up the issue of judicial activism in a scholarly way. Perhaps you or I could find that article somewhere else. But perhaps also you could define “judicial activism” in a way that (1) characterizes your view and (2) can be measured somehow with begging the question (without assuming what you’re trying to prove). I’m not bored with this, by the way. I find legal interpretation arguments interesting and would like to hear more sound explanation of “judicial activism.” Thanks for the comment.

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