Maybe Republican Politicians Should Decide All Currently Pending Court Cases

As I speak to many of my more conservative-minded LDS friends, one political issue appears to dominate as the number 1 voting issue: Supreme Court Justices. While others like abortion and SSM also seem prevalent, my un-scientific and anecdotal evidence points to Supreme Court Justices as the number 1 issue.

A typical conversation goes something like:

Me: "You’re really going to vote for Bush. But his I.Q. is like 5 or so."

Conservative Friend: "That may or may not be true but I would vote for a baboon over a democrat because the president has all the power when it comes to Supreme Court Justices and something really needs to be done about that liberal activist court."

While the conversation is stylized it is more or less true and repeated often.

With this in mind, Tom DeLay’s comments today got me thinking. He lashed out against the courts that have "thumbed their noses at Congress" in not hearing the Schiavo case. According to DeLay, the 11th Circuit and the Supreme Court is an "arrogant, out of control, unaccountable judiciary." He has phrased this nose-thumbing debate in a conservative vs. liberal framework (which I realize is what any good Congressional leader would do, right or left). But the similarities between DeLay’s anger today and my LDS conservative friends’ theory for choosing a president are uncanny. The Supreme Court is marginally conservative (numbering more republican appointed judges than democrat appointed judges, even controlling for a certain Justice from New Hampshire). The judges that heard the Schiavo case, both in state and federal court were not all liberal. And the Supreme Court (marginally conservative remember) refused to hear the case 6 times.

My point, in case you were all wondering, is that while many conservatives argue that the solution to their problems (especially on Roe and SSM) is to have a republican president appoint conservative and non-activist judges, this really doesn’t look like it will solve anything. In fact, DeLay today, threatened many of those conservative, non-activist judges with consequences (not ruling out impeachment).

In fact, the answer for conservatives seems to be judges who do what conservative politicians tell them to do. While, to be fair, this is a belief with a rich historical heritage on both sides of the aisle, it doesn’t seem to be the grounds to either build a cogent judicial-appointing philosophy nor really good grounds for choosing a president.

Maybe all the complaints about the judicial branch come down to the fact that politicians really can’t control lifetime-appointed judges (as was the intention). And sometimes judicial theory doesn’t translate 1 for 1 to political theory or partisan politics.


  1. Can someone explain to me again what an “activist” judge is? It seems to me that an activist judge is one that I don’t agree with.

  2. I agree with Chris Williams. And I think all the lawyers out there (and non-lawyers) who have studied the legal process in any detail (especially the political wranglings surrounding key U.S. Supreme Court decisions), that most all judges go into a case already knowing how they are going to rule based on their own set of values (there are exceptions to this, of course). Then the judges make their clerks find precedent to justify and back up these decisions, so the rest of us can feel good that our judges aren’t just making up the law as they go along.

    Offering a less cynical view – one can never be entirely certain how a judge will rule – or if the judge will flip flop his value system once he or she gets on the bench. Blackmun and Souter come immediately to mind.

  3. Frank McIntyre says:

    HL, is it somehow your view that Tom DeLay is representative of the views of most conservatives? Perhaps you find Pelosi to be representative of the views of most liberals, but I think neither comparison is particularly on target.

    I like judges who feel constrained by the text of the Constitution. A sign of a good judge, then, might be one who rules in ways that the judge finds less than appealing from a policy perspective, but they are constrained by the text of the constitution. An activist judge would be one who issues rulings that largely reflect their policy preferences, and then attempt to justify them as best they can. Thus an activist judge dislikes amendments and legislative action that renders their verdict irrelevant. A good judge might sometimes be quite pleased when this happens.

    So I guess I want judges to be more morose than they currently are. Obviously this can be taken too far, but it is all the guidance I need given the fact that my vote will not actually affect the election…

  4. HL Rogers says:

    It is not that DeLay is representative of all republicans or all conservatives. It is simlpy that his reaction today was a good example of not just a conservative view, but I think a liberal one as well. Mainly, judges are great when they rule the way we want and when they don’t they are activist [insert other dirty non-definable term for low-down dirty judges here].

    1. What does it mean to be constrained by the text of the Constitution? The constitution is a very vague document in many instances for a very important reason. It allows for it to be used through the decades and centuries as different legal situations arise. So what does it mean to be constrained by the text? Why not constrained to the text as interpretted by the authors?

    2. I am a bit cycnical here but most judges rule according to their policy prefernces. Of course, certain legal regimes are more specific and bright line than others allowing for little wiggle room. Outside that small circle most rulings are catered around policy goals. In fact, I’m not sure the law even makes sense once removed from ulitmate policy goals. Nor am I sure it is a bad idea for judges to rule along their policy–isn’t that why we vet them and isn’t that tied directly to the idea of a judge. These aren’t simple legal robots. Reading a super-specific law and applying it the only way it can be applied to a situation. Rather they are patterned more after a Solomonic ideal (though I don’t know of one Solomon-esc judge out there) to rule in the way they judge correct within the boundary of the laws–or something such high-falooting nonsense.

  5. HL Rogers says:

    Although I do like the idea of appointing more morose judges…

    In fact, I think it would be really interesting to see what happened if we appointed suicidal judges. That would probably drastically change the outcome of cases.

  6. HL – are you for real?

  7. HL Rogers says:

    As far as suicidal judges?? No, that was merely tongue-in-cheek. I agree with Frank that if you want judges who aren’t driven to some extent by their own policy objectives you would be left with a very interesting and rather depressing group of people.

  8. Tess, HL is indeed for real. The high-luster shine on my shoes is a testament to his reality.

    Good post, btw, HL — I think that once a year, all of the three branches of government should switch places. I’d like to see the President interpret a law!

    Or perhaps judges could just have more “take your politicians to work” days, which would be a more adequate reflection of reality.

  9. “if you want judges who aren’t driven to some extent by their own policy objectives you would be left with a very interesting and rather depressing group of people.”

    Have you been around many judges lately?? Sounds like an accurate description to me.

  10. Last Lemming says:

    I am happy to acknowledge that judicial activism exists, and is not limited to decisions I disagree with. Miranda, for example, represents an interpretation of the constitution that was not envisioned by its writers and which Congress could have, but did not, write into legislation at any time in the ensuing 185 years. But it was a good decision, and even the current Supreme Court has explicitly declined to overturn it.

    Then there’s Bush v. Gore. Oh, never mind.

    As for Tom DeLay, as long as Republicans keep electing him Majority Leader, it is entirely appropriate to treat him as representative of all Republicans, if not all conservatives. If they don’t like it, they can kick him out.

    And we should be so lucky that DeLay actually tries to impeach some of the judges involved in the Schiavo case. I’m foaming at the mouth just thinking about all the new Democratic seats in the House.

  11. Frank McIntyre says:

    “As for Tom DeLay, as long as Republicans keep electing him Majority Leader, it is entirely appropriate to treat him as representative of all Republicans, if not all conservatives.”

    This is a naive view of politics. It would be like saying Bush is representative of all Americans. At most you could claim that he was representative of a majority of Republicans. Actually, since Bush actually won a popular national election but DeLay never has done anything comparable within the Republicans.

    Also, I doubt Pelosi is represenative of all Democrats.

  12. When Frank suggests that DeLay is not representative of all Republicans he is certainly correct–as long as we are including average citizens. But I took the comments above to mean that DeLay is pretty representative of Republican elites (or perhaps congressional Republicans). He did after all win an election among congressional Republicans (something Bush has not done and quite probably could not do–e.g. rise through the ranks of the House).

    Thus the claim that DeLay is representative of a certain rather important group of Republicans seems like a good one to me.

    In terms of the substance of this post, the evidence that judges have distinct political preferences and clearly follow them is pretty overwhelming. For some evidence on that point see:

    Obviously you have to draw a distinction between the Supreme Court and inferior courts (which have FAR less discrection). But the point about judges voting their “preferences” strikes me as more than defensible. It’s hard to imagine a world where that would not be true.

  13. Frank McIntyre says:

    HL, I want more robot, less living Constitution. We have amendments and legislatures for instituting social change.

    Also, I would agree that most judges are driven by policy preferences. I am saying that is not my preference for a judiciary.

  14. HL Rogers says:

    Are you saying that it is ok for the legislature to interpret the constitution or enact social change and its the courts’ duty to uphold those interpretations and social changes? [i'm restating to make sure I have it right]

    If yes, why the division in that way? Why are the courts less able to interpret and make social changes? Your answer I assume will be democracy: we elected congress. But judges are merely an outcropping of democracy. We chose the politicians that chose the judges. In a way, the judges are the very tool of social change that congress envisions. In fact, I would argue that since the early 1800s that is exactly what has happened on both sides: judges are one of the tools that congress uses to enact its social agenda. That does seem to be democracy at work.

    The problem of course comes when the judges refuse to obey the legislature. But isn’t that one of the points of the judiciary. They are a check on the congress and the executive. Thus, in one sense they are both the arm of the congress and the check on its power.

    In this formulation activist judge really means a judge that is either being a check to the legislature (as it was meant to be–going against what the congress has decided) or the arm of the less powerful side of congress (for example: a judge appointed by democrats following a more liberal agenda when congress is in the hands of the republicans). Such a system seems problematic at times but not per se.

  15. HL Rogers says:

    you seem powerfully swayed by the possibility of robots among us. See comment#9.

  16. Just in case this discussion hasn’t taken this course yet, this interesting issue is exactly the issue taken up by Dr. Davis (BYU Poli Sci Prof) in his book released TODAY (April 1) by Oxford University Press. His analysis, at least for me, is nothing short of captivating. The timeliness of the book also makes me giddily excited about sharing the news with others.

    URL of BYU News Release:

    Book title: “Electing Justice — Fixing the Supreme Court Nomination Process”

  17. It seems to me that there is a valid concern about Judicial Activism by both sides of the political spectrum. More interesting to me is that judicial philosophy isn’t really talked about much by those spouting all this. I have to admit though that despite being a Republican I’ve found a lot of the talk the past week or two pretty distasteful.

    I think the consensus is that DeLay may be making the comments he has because of all the scandals he is facing along with some disenchantment in the ranks. I think many people suspect that he may be going the way of Newt Gingrich.

  18. Judges just aren’t bound by the constitution, they’re also bound by statutes and case law.

    I think Frank unerrates the role of “judgement” in what judges have to do. I agree that they shouldn’t simply substitute their own preferences for the preferences of the legislature or constitution-writers, but they are required to draw all sorts of distinctions in defining exactly what those things should mean, and that’s how we get a system of “common law.” In fact I think that’s mostly what they do. We need people who can draw the right distinctions, not just robots. It’s not always easy to tell where this turns into “activism” or “enforcing social change.”

    I expect Frank and I both agree that Roe v. Wade was a travesty. But I wonder what he thinks about Miranda? It is somewhat arbitrary, but on the other hand it’s enforcing a real constitutional provision. Too activist?

  19. Actually, the problem with the Supreme Court and the Federal Courts is systemic, and cannot be addressed by appointing new judges.

    The current system takes obscure individuals and gives them tremendous power, grants them lifetime tenure, and requires almost no accountability. It’s supposed to ensure that court decisions aren’t determined by the whims of popular opinion; instead it ensures that court decisions are made by the whims of the (often unpopular) opinions of obscure people who answer to no one provided they behave well. It thereby turns otherwise honest individuals (conservatives and liberals alike) into autocrats, and turns courts into oligarchical committees. It’s time that we just admit that our Constitution’s judicial framework is deeply flawed. It corrupts its participants, and its corrupted participants corrupt the system.

    I remember an interview with Rehnquist in which he was asked how he’d changed over the years. He answered that he had come to have greater respect for precedent. In other words, his estimation of his own importance and power (and the importance and power of the peer group to which he belonged) had grown. This is just what happens, and this poisons the process.

  20. First, I have to pipe in and agree with clark on the DeLay issue. Just two weeks ago he was embroiled in an ethics scandal, and the way he was responding to the media (attacking them instead of defending his actions) indicated that he was grasping at straws. I’m usually not such a cynic, but I feel like Terri Schiavo was a tool for DeLay to use to get a bunch of press favorable to conservatives who would normally be put off by his ethics issues. Which breaks my heart, because that woman lost all dignity in the last days of her life, and to a certain extent, Tom DeLay is to blame for powerfully exacerbating that trend–for what seem to be completely selfish reasons.

    Second, I think that the Schiavo case highlights what many outside of the legal field do not realize. Every day, federal and state judges collectively make hundreds of decisions that are not related to hot button issues and that require sound understanding of the law and capable judicial making ability. Good judges consistently get these right, and their abilities allow our economic and social system to function. Yes, there are bad judges out there, but there are a lot of good judges on both sides of the aisle who take seriously their role in free society and should be applauded for being overworked public servants.

  21. Seth Rogers says:

    I have come to the conclusion that most judges are “activist.”

    One of the most activist judges on the Supreme Court has actually been Rehnquist. A great example is International Society for Krishna Consciousness v. Lee. Of course, it deals with a very difficult area of First Amendment jurisprudence (so it may simply leave some scratching their heads). I’ve read a lot of opinions from Rehnquist that left me thinking “where on earth did he pull that from?”

    To an extent however, it is impossible to not be an activist as a judge. Maybe some of you think that the Constitution gives hard and fast rules about how we should treat new situations like the internet. Maybe some of you think that Congress always comes up with absolutely clear pieces of legislation. Maybe some of you think Elvis is alive in your medicine cabinet.

    The truth is that there are always situations that legislation and the Constitution simply do not address or fail to give clear guidance on. These gaps need to be filled with what the judge feels is equitable, just, and beneficial.

    This doesn’t bother me in the slightest. Our Constitution intended for judges to be activist. If judges weren’t, the Constitution would have been obsolete 100 years ago.

  22. Seth Rogers: Our Constitution intended for judges to be activist. If judges weren’t, the Constitution would have been obsolete 100 years ago.

    People say this because they side with the courts on their activist decisions. Let’s be perfectly clear: No US Constitution (including the federal one and the state ones) ever intended for people with lifetime tenure and no accountability to anyone to create basic laws. The difference between activist courts and non-activist courts is exactly the difference between an oligarchy and a republic.

    Seth Rogers: Maybe some of you think that the Constitution gives hard and fast rules about how we should treat new situations like the internet.

    Somewhere along the line, people started believing that the court and the Constitution should protect us from bad laws or somehow arbitrate what is and isn’t a sensible law. The Constitution does not do this. Nor does it offer any more guidance about handling the old issues of murder or fraud or copyrights or patents than it does about the new issues like the internet. The reason the Constitution is not obsolete is because it omits mentioning these issues. It creates the political framework in which these issues are handled. The question of judicial activism (like all political science questions) is about who makes the decisions, not which decisions are made.

    Seth Rogers: Maybe some of you think Elvis is alive in your medicine cabinet.

    This is just plain silly. Even with the current trend of making everything in a house gratuitously huge, you simply cannot fit Elvis in a medicine cabinet–and that’s if you could even find him.

    Karen: Good judges consistently get these right, and their abilities allow our economic and social system to function.

    On a day to day basis, judges constantly make mistakes on the law and the facts. This is one of the primary reasons why it’s always better to stay out of court when its possible: you never know what will happen. Several years ago, one legal decision that involved me got written up in a legal journal as an example of a very, very bad decision. It cost me a lot of money, but because it involved a bank and the estate of a dead man, and because of the way that the appeals system is set up, there was nothing I could do about it. This is how the system “works.”

  23. Seth Rogers says:


    I’d better get a bigger medicine cabinet!

  24. Mark B. says:

    First, the current Supreme Court has 7 Republican appointees, (Rehnquist,Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas) and 2 Democratic appointees (Breyer and Ginsburg). If the political party of the appointing president determined the direction the court leans, it would be much more conservative than it is now.

    Second, we (or our forebears) fought the revolution so that we might have a democratic form of government. Courts are inherently non-democratic. So, if the legislature acts whimsically to prohibit the sale of contraceptives except with doctors’ prescriptions, throw the buggers out and get a new law passed. Don’t go to the courts for a non-democratic remedy.

    Third, AT misses entirely the meaning of Rehnquist’s statment of his increased respect for precedent. He’s not talking about the precedential value of his court’s judgments, but of the importance in his court’s following precedents established in earlier decisions.

    Fourth, it’s a miserable way to run a country to have all the hard questions decided in the courts, rather than in the back and forth of the legislature. If we start watching Supreme Court decisions the way we read the sports pages, then the court is way too far to the front. Kick them back into the back room, keep their opinions interesting for lawyers only, and get the great issues of the day into the legislatures.

  25. Frank McIntyre says:


    Robots are cool.

    HL and Ed,

    I want more robot. Not all robot. I have in mind a gradient but no strong sense of the optimum. I’m just pretty sure in which direction I think it lies.

    I do not think of the judiciary as merely another nexus of power. Rather I think they are to make sure that we are following the Constitution. In fact, since they are not elected, and since legislators are also charged with upholding the Constitution, I don’t see a problem in the judiciary being charged with making sure that the laws passed can reasonably construed as constitutional, giving the benefit of the doubt to the legislature. Of course, I would also like to see some serious reform of congressional districts to create competition. As it stands, a member of the house is only slightly more likely to lose their seat in election than a judge is to be impeached! Thus the House is not currently well-checked by the populace. The Senate can’t gerrymander, so that helps a fair bit.

    On Miranda, I don’t really know enough to say. I am all for people knowing their rights as a general rule, though I am not interested in throwing out cases where there is a messup. But why is this not the domain of the legislature? What provision of the Constitution requires that I be informed of my rights?

  26. Thank you, Theodore Olson, for finally telling it like it is:

    (from today’s Wall Street Journal)

    A prominent member of the Senate leadership recently described a Supreme Court justice as “a disgrace.” An equally prominent member of the leadership of the House of Representatives on the other side of the political aisle has characterized another justice’s approach to adjudication as “incredibly outrageous.” These excoriations follow other examples of personalized attacks on members of the judiciary by senior political figures. So it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts.

    We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world. . .

    We expect dignity, wisdom, decency, civility, integrity, and restraint from our judges. It is time to exercise those same characteristics in our dealings with, and commentary on, those same judges — from their appointment and confirmation, to their decision-making once they take office.

  27. Shame on you, Ted Olson.


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