Welcome to Talking Point Theater. Today's guest, Arroyo, will now present the Democratic talking point for our edification and discussion:
The liberal definition of judicial activism and the conservative definition are wildly different. To a conservative, judicial activism is when judges, in their legitimate role as reviewers of the law, substitute their own preferences for the law, or make up new laws, thus usurping the legislative powers of congress. The classic example of this is the Weber case, which Thomas Sowell summarized brilliantly:
Originally Posted by Arroyo_Doble
A specific and real case may illustrate concretely the distinction between seeking the cognitive meaning of instructions and going beyond cognitive meaning to extrinsic considerations. The Weber case49 provides such an illustration. Section 703(a) of the Civil Rights Act of 1964 made it illegal for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race" or various other characteristics. Section 703(d) more specifically forbade such discrimination in "any program established to provide apprenticeship or other training." A white employee, Brian F. Weber, was denied admission to a training program where places were awarded on the basis of seniority, even though black employees with less seniority were admitted, because racially separate seniority lists were used and racial quotas were established. That this was counter to the plain cognitive meaning of the Act was not explicitly denied in the U.S. Supreme Court opinion written by Justice William J. Brennan. But Justice Brennan rejected "a literal interpretation" of the Civil Rights Act, preferring instead to seek the "spirit" of the Act in Congress' "primary concern" for "the plight of the Negro in our economy."50 In short, he went behind the cognitive meaning of the law's provisions to the presumed purposes and values motivating the enactment of the law. Because that presumed purpose was not to protect whites from racial discrimination, the Act was deemed not to protect Brian F. Weber, who lost the case. The emergence of this decision from the clear language of the Act to the contrary was likened to the great escapes of Houdini, in the dissenting opinion of Justice William H. Rehnquist.51
The Weber case illustrates the difference between seeking intrinsic cognitive meaning and going beyond that meaning to extrinsic considerations because (1) there was no serious question as to the cognitive meaning of the words, so that (2) the kinds of interpretive steps suggested by Holmes and Blackstone, among others, were unnecessary for the purpose of advancing toward the cognitive meaning-- and were, on the contrary, used to advance beyond cognitive meanings, in the manner suggested by Ronald Dworkin.
The law banned preferences, but the judges wanted to permit them, so the law was "interpreted" to mean something that it clearly didn't mean, and thus rewritten. To put it another way, the language of the act was contrary to the desires of the judges, so the judges simply decided that the act meant something that it obviously didn't, in order to impose their preferences on the plaintiff. However, the same language that the law applied also appeared in the 14th Amendment, and so the court decided that the Amendment's "true" meaning lay, not with the text, but in their interpretation of it, even if that interpretation willfully violated the text.
OTOH, the left defines judicial activism simply by numerical criteria, as in the number of decisions that involve overturning a law, regardless of whether the laws are Constitutional or not. Thus, when the SCOTUS decided in United States v. Lopez that the Interstate Commerce Claus did not give congress the authority to regulate the possession of a firearm within a certain distance from a school within the states, it was decried by leftists as judicial activism, even though the language of the clause clearly and unambiguously that congress only has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;" The obvious meaning of the text is that the states, which were seen as sovereign entities, would delegate the regulation of their commerce with other states to the congress, just as congress would regulate their commerce with foreign nations and Indian tribes, all of which were also sovereign entities. Clearly, the latter decision follows the Constitution in overturning the law, while the former decision inverts its meaning in order to create a new law, one that was not passed by any legislative process.
Now that this has been explained to you, Arroyo, I hope that you will understand why this talking point cannot be used again, without causing a great deal of laughter.