A Philosopher's Blog

Sotomayor, Activist Judge?

Posted in Politics by Michael LaBossiere on July 15, 2009
WASHINGTON - JUNE 02:  U.S. Supreme Court nomi...
Image by Getty Images via Daylife

As the Sotomayor hearings grind on, the Republicans continue to raise the spectre of the activist judge.

In neutral terms, an activist judge is a judge who attempts to create law from the bench by changing laws to match a political ideology. While judges cannot legally create new laws (that power is reserved by the legislative branch of government at the state and national levels), they can clearly shape the interpretation of existing laws in a way that has an effect comparable to creating new laws.

In practical terms, people tend to use the term “activist judge” to refer to a judge who they believe holds a different ideology than the one they themselves hold. For example, some Republicans fear that Sotomayor is pro-choice and anti-gun. Hence, they are inclined to accuse her of being an activist judge because they think she might rule in ways they would disagree with. As another example, some liberals regard John Roberts as an activist judge because they interpret some of his rulings as being in accord with the Republican ideology.

One factor that often makes it easy to cast judges as activist judges is the fact that laws relating to controversial matters are generally imbued with political ideology right from the start. After all, laws are created by politicians and they tend to be rather prone to holding (or claiming to hold) ideological views. So, when judges make rulings on laws that are already imbued with ideology, their interpretations will tend to also appear (or actually be) tainted with ideological views. When a law is already politically biased, it can rather challenging to present a ruling that is free of political bias.

Another factor that makes it easy to cast judges as activists is that they interpret the law using their minds and their minds are obviously shaped by their experiences and values. While a good judge, like a good professor, tries to keep bias to a minimum, people make their judgments based on who they are. As such, someone who is a liberal will tend to judge in a liberal way. Likewise for conservatives.

The challenge is, of course, to determine when a judge crosses the line between being a human being with values that impact her view of the world and acting in a prejudiced/biased manner. It can, of course, be rather hard to discern what counts as bias. Part of the reason is that people tend to regard any ruling they disagree with as biased and any ruling they favor as being objective. For example, a conservative might see Roe v. Wade as a liberally biased ruling while a liberal would probably regard it as an objective and correct interpretation of the Constitution.

In the realm of practical politics, the Democrats and Republicans want to get people on the court who will support their ideology. A justice who does that is praised by her side and condemned by the other. So, it is hardly shocking that the Democrats are generally supportive (if not a bit over supportive) of Sotomayor while the Republicans are generally against her.

Ideally, of course, a justice should be the sort of person who will rule wisely in ways that are truly best for the country. Naturally, each side thinks that their ideology is what is best-and that is where the disputes get rolling.

My own view is that Sotomayor is a highly competent person. She has stood up well to the questions raised in the hearing, has a solid background in law, and seems to be a classic moderate Democrat-with the emphasis on moderate. I do not anticipate her making any “crazy” rulings or pushing ideology from the bench. She will most likely support Roe v. Wade against any challenges and rule in a way consistent with moderate Democrat ideology. In fact, I suspect that she will (like Obama) disappoint some of the folks on the far left with her views and rulings.  Of course, once in a while justices turn out to be a surprise. But usually not.

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  1. […] activism? Here’s some further briefing, as given here also before the show I did in June. Sotomayor, Activist Judge? – aphilosopher.wordpress.com 07/15/2009 Image by Getty Images via Daylife As the Sotomayor […]

  2. DarwinsProof said, on July 15, 2009 at 3:03 pm

    A written test that ‘special’ people couldnt pass thrown out….The Dumbing Down of America. Watch for it in a theater near you. Or better yet…watch for it when Fire Dept or other professional first responders come to your aid. Know the one treating your child has his/her job because of the color of their skin. Never mind someone more qualified but different heritage was passed over. She said on the record that that was OK. She actually believes that it was designed to be prejudice and biased. She is too racist and biased to acknowledge the importance of such testing. She is exactly why there will always be prejudice and bias. She will always point out the color of someones skin in EVERY situation as though it has merit. Dumb is as dumb does. If she is seated, we all qualify. Be afraid…very afraid.

    • Michael LaBossiere said, on July 16, 2009 at 10:46 am

      I’m not too worried about Sotomayor. The straw person being created of a radical, activist judge who will do terrible things does not seem to at all match the reality of her rulings. Of course, the ruling about the test does raise some questions-but hardly seems to be a sign of a judicial apocalypse. The unfortunate thing about the hyperbolic attacks on her is that they serve to (ironically) provide cover against more legitimate concerns. The public interest would be better served by more restrained and more founded criticism, rather than the usual use of rhetoric.

      • magus71 said, on July 16, 2009 at 12:34 pm

        Of course Mike. She’s a lib and so are you, so you support whatever she says. Where is the hyperbole? I think that was given to Palin. Where are the attacks on the judge’s children and family and her marriage?

        You’ve got to be kidding with this. I mean you can’t REALLY believe that her ruling against the fireman was the correct one. If you were the fireman, would you STILL think so? The man who studied like 11 hours a day and did better than the people that were hired? Is THAT justice? Is this who we want? Nevermind left right or center. Are attitudes like hers right?


        • Michael LaBossiere said, on July 16, 2009 at 5:42 pm

          I don’t support whatever she says, obviously. Sure, some of the attacks on Palin were hyperbole. Interestingly enough, I argued in her defense when she was attacked for having a tanning bed. I’m not given to hyperbole against anyone, except when joking or taunting.

          I don’t agree with her ruling in the promotion test. Legally, the Supreme Court ruling shows that she was in error. However, I do not judge a person based on one ruling. You have to look at the overall record (just as you don’t judge a baseball player on one game). Her general record seems to be moderate and seems to indicate that she is highly competent.

          Throwing out the test results because the city feared a lawsuit is unacceptable. It is also ironic in that they ended up in a legal battle anyway (and what did they think would happen?). If the test is unfair, then it needs to be changed. However, the mere fact that some white guys and a Hispanic did well on the test is hardly proof that it is unfair. If the city was so worried about lawsuits, then they should have dealt with the test before it was actually given to make sure that it is a fair test.

          The way the ruling went, it looks more like she was agreeing with the city’s decision to toss out the test to avoid a lawsuit than that she was engaged in some sort of racist crusade. You need to review her other rulings to get the general picture of her judicial philosophy. She is not a loony lefty racist at all. Or, if she is, she seems to hide it amazingly well.

      • DarwinsProof said, on July 19, 2009 at 1:00 pm

        Obvious the American education system does exactly as intended. Your distracted from whats right in your face. You dont realize that decision in and of itself is all any intelligent person need be aware of. Keep being your ‘Politically Correct’ self but please dont breed and ask for help before crossing the street. Remember…these are same Gov. leaders that voted for the Patriot act and admitted they never read it. You really think your freedom is even being considered?
        Read my book…your outcome is described there.

  3. Diva said, on July 15, 2009 at 3:19 pm

    Sweet Sonia Sotomayor
    this si my alive tribute for you
    from my heart

    I know you are very very competent person to stay on the supreme court
    and i wish on my country do the same to everyone who work on the guberment but is more then impossible!!
    i believe them are more then rude to you cause you are woman and more cause you are Latino but please never give up
    go on and on on the justice like always God will be whit you……
    Martha Perez Diva

    • DarwinsProof said, on July 15, 2009 at 3:30 pm

      See…she would make you a fireman!!! What test?..

  4. Reality said, on July 15, 2009 at 4:45 pm

    Ah, yes…. To the right wing, if an appellate judge actually does his or her job and interprets the law within the framework of the Constitution and, therefor doesn’t rule they way they believe he or she should, they that judge is an “activist.” It is also useful to misrepresent the facts of the cases before a judge so that you can label him/her “liberal” (=evil) or “activist” (=hates America).

    I personally do not think that Sotomayor is the best choice Obama could have made for the Court, but she does seem to have a good judicial philosophy: examine the facts of the case before her and apply the law as it is written and/or in keeping with judicial precedences. This is activist how?

    There is a huge misunderstanding about the role of the judiciary in American government. Most people think that the Court is constrained by the Constitution only to apply the law. This could not be further from the truth. The Court interprets the law and, when it finds a law is unconstitutional or if some other conflicting law holds precedent, the Court can strike it down. This safeguard is in place because the legislative branch has many times passed laws that run contrary to the Constitution or conflicts with others. One doesn’t need to be too bright to be a member of Congress, after all, and the institution has a long history of getting things wrong.

    • biomass2 said, on July 15, 2009 at 9:27 pm

      Amen. Your first and third paragraphs and Michael’s second through fifth paragraphs just about cover it. Michael offers a basic observation about humankind: “. . . people tend to regard any ruling they disagree with as biased and any ruling they favor as being objective.”

      But I’m not sure what prompts your statement “I personally do not think that Sotomayor is the best choice Obama could have made for the Court. . .”

  5. Diva said, on July 16, 2009 at 7:44 am

    Michael(rip),Sonia you guys belong to God…
    dont listen nobody else
    Sonia im a Magic person you will stay there cuase we all pray for you ….listen to your heart sweet heart and God will be whit you…..
    my prayers to you now qnd forever…
    Martha Perez Diva

  6. David said, on July 18, 2009 at 3:02 pm

    The problem with the ruling on the test is the muddy waters of the laws that we are trying to abide by. (Assuming the test is fair)- Obvioulsy we want to say that it should stand. But we DO have affirmative action laws in this country whether you agree with them or not. The ruling by the appeals court is not inconsistent with previous supreme court rulings, but now that the court has a conservative bent, of course they overturned it.

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