My penultimate entry in answering Schumer's attempt to play Torquemada against Supreme Court nominee John Roberts. The best answer Roberts could give would be the Ginsburg response: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”
Once again, The Monk answers the questions that John Roberts, in many cases, cannot. These questions are the ones Chuck Schumer wants Roberts to answer to Schumer's satisfaction. Fat chance that. And The Monk won't make Schumer any happier. But that's not my concern. So here are Schumer's questions and The Monk's answers:
10. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.
Either: (1) reaching a decision without regard to the controlling law, the plain meaning of the controlling law and/or the intent of the controlling law (provided its intent is itself constitutional); or (2) legislating from the bench (the Miranda warnings requirement, Roe v. Wade). Roper, Kelo and the Civil Rights Cases fit the first part of this bill.
-- Is the "activist" label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?
It can potentially work either way, but you'd be hard-pressed to find "conservative" judicial activism recently because what liberals call "conservative judicial activism" is merely scaling back the out-of-control judicial activism that liberal courts have used. Korematsu or Barnette would work.
-- In cases where federal law and state law may be in conflict, who is the activist - the judge who voted to limit the federal law or the judge who limited the state law?
Ridiculous question: the Constitution grants certain powers to the Federal government, certain powers to the states so it all depends on what's at stake.
-- Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?
No and no (see my previous posts in this series).
-- Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?
Yes, but it was correctly decided.
Yes, and it stretched the Fifth Amendment "custody" issue far beyond any constitutionally intended limit.
Yes, and it was a bloody travesty.
Yes, and we're still paying for how they helped neutralize the Privileges and Immunities Clause of the Fourteenth Amendment.
Lochner has become a shibboleth. I think the decision was more a regrettable misreading of reality than activism.
Yes.
No, Bush v. Gore was the correct decision because the decisions by the Florida Supreme Court violated Article II of the Constitution. Remember: seven of the nine justices found an Equal Protection violation by the Florida Supreme Court.
What distinguishes one case from the other?
See above.
11. Do you describe yourself as falling into any particular school of judicial philosophy?
I'm not so good with open heights so I try to avoid situations where falling is a real possibility.
-- What is your view of "strict constructionism"?
Works for me: words should have specific meanings. It's expansive construction that rendered the word "shall" a legal nullity as courts found it meant "may" "must" "should" "could" "will" "might" and their opposites!
-- What is your view of the notion of "original intent"? "Original meaning"?
Original intent is fine so long as that intent is ascertainable and applicable. Original meaning is a weasel term.
-- How do you square the notion of respecting "original intent" with the acceptance of the institution of slavery at the time the Constitution was adopted?
This is the US equivalent of comparing some act or intent to something the Nazis did. The logic is that because slavery was not abolished by the Constitution, and many of the Framers owned slaves, their original intent is therefore invalid, illegitimate and fundamentally racist. This ignores the historical reality of the compromises necessary to obtain ratification of the Constitution. There is no need to square "original intent" with acceptance (note, the question doesn't use the word "endorsement" because it cannot -- the Framers never endorsed, approved or exalted the institution of slavery) of slavery because those parts of the Constitution that dealt with slavery in any way are severable from the rest of the document.
12. What in your view are the limits on the scope of Congress' power under the Equal Protection and Due Process clauses of the 14th Amendment?
Congress can only exercise power to enforce the Fourteenth Amendment by "appropriate" legislation. There's your limit.
-- Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?
No. Equal protection, not equal result.
Do you agree that, under the Equal Protection Clause, disparate impact alone does not render a law unconstitutional, as the Court held in Washington v. Davis (1976)?
Yes.
Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?
Yes. The state should not be allowed to interfere as it desires.
Next up, the final questions and a wrap-up.
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