The distress of the Democrat Party on nomination of Brett Kavanaugh to the Supreme Court is based on recommendation and promotion by The Federalist Society. The Society’s mission is based on belief in the virtue of judicial restraint as is articulated in Federalist 78 written by Alexander Hamilton:
In Federalist 78, Hamilton says “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. The courts must declare the sense of the law: and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
The logo of the Federalist Society is the image of James Madison, who is generally credited as the father of the Constitution.
The Democrat Party sees the appointment of Kavanaugh as an existential threat to their “pleasure” of judicial activism and the progression to democratic socialism.
C. Augustus Landis, Sr. Esq.
Onancock
I have read the history of the United States Supreme Court from the time of its founding to the present, and all presidents to some degree or other have politicized the court with their appointments, and “judicial activism” has been around for many years now.
Consider, for example, the famous “Four Horsemen,” which was the nickname given by the press to the four conservative members of the United States Supreme Court during the 1932–1937 terms, who opposed the New Deal agenda of President Franklin Roosevelt, they being Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter.
They didn’t like the New Deal based on their feelings, which is the definition of judicial activism, to wit: Court rulings made based on political or personal views of the judges presiding over the case.
Another example comes to us from p.137 of “The United States Supreme Court: The Pursuit of Justice” by Christopher Tomlins, we are told this:
The decision in the Sinking Fund cases, coming just two years after Munn, so infuriated corporate and financial elites that some of them vowed to do something about it.
During the election of 1880, New York’s business aristocracy, led by financier Jay Gould, expressed “real anxiety” over “the course of the Supreme Court in the Granger cases and in the Pacific R.R. case,” and noted that “the next president will almost certainly have the appointment of three new judges.”
(Ward Hunt was paralyzed, Nathan Clifford was ailing, and Swayne, seventy-six years old, had made it known that he intended to resign.)
A letter was sent to prospective Republican nominee Garfield by Whitelaw Reid of the Tribune, indicating that “monied men” and “corporations” were “unwilling to elect a president unless they are sure that he disapproves what they call the revolutionary course of the majority of the (Supreme) court.”
“If they could be satisfied on this point, I know we could make a big demonstration at once” – that is, a demonstration in the form of a significant campaign contribution.
Garfield would not allow himself to make an overt promise on particular appointments, but he did respond in writing that “I have stated to you, fully, my well considered views of the constitution in reference to the sanctity of Contracts and of vested rights – Under no circumstances would I entrust the high functions of a Justice of the Supreme Court, to any person whom I did not believe to be entirely sound on these questions.”
Garfield received a reported $150,000 from Gould; along with financial support from John D. Rockefeller, he was able to squeeze out a 10,000-vote victory over his Democratic presidential opponent.
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According to the Legal Dictionary, the exact history of judicial activism is unclear, but it is believed that the concept has been around for centuries.
However, a man named Arthur Schlesinger, Jr. brought about the term judicial activism in 1947.
Schlesinger was a specialist in American History, and was well known for his study of 20th century American Liberalism.
Schlesinger introduced the term in a Fortune Magazine article published that year entitled “The Supreme Court: 1947.”
In the article, Schlesinger grouped the courts into three categories: (1) judicial activists, (2) champions of self-restraint, and (3) a middle group.
Since the term first hit the political-judicial stage, it has been a point of controversy.
This is especially interesting, as Schlesinger never truly defined the term.
Since the term’s inception, there have been varying opinions on what the term judicial activism truly means.
Law professor and leading constitutional scholar, David A. Strauss, has offered his opinion that judicial activism can take at least three forms.
These include:
1. The act of overturning laws as unconstitutional
2. Overruling judicial precedent
3. Ruling contrary to a previously issued constitutional interpretation
Toward the end of the 20th century, the U.S. Supreme Court was seen as a powerful judicial body exercising greater activism than ever before.
Conservatives criticized many of the justices, claiming they struck down many state and federal laws based on their own liberal political beliefs.
The history of judicial activism shows us however, that both liberals and conservatives are known to take part in, and benefitting from the practice, while accusing the other group of doing so.
For another glimpse of “judicial activism,” we find a good example of it at p.150 of “The United States Supreme Court: The Pursuit of Justice” by Christopher Tomlins, as follows:
The judges all insisted that they were passing on the constitutionality of legislation, not its wisdom – they were judges, not legislators – but some of them clearly thought the more aggressive tendencies in economic regulation to be unwise.
Justice Harlan explained in a speech from 1908 of the need to counter “the pernicious doctrines of the present day that are called socialism and paternalism.”
What was merely a reasonable exercise of the state police power and what crossed the line into paternalism divided the judges.
Justice Brewer uttered one of his best-known lines in 1892 – “The paternal theory of government is to me odious” – in his dissent in Budd v. New York, in which Justices Field and Brown joined.
The majority upheld a New York law that set a maximum rate for storage at privately owned grain elevators.
Justice Samuel Blatchford explained that the legislature might regulate natural monopolies on which farmers and dealers were forced to depend.
He relied on the rule formulated in Munn v. Illinois (1877), in which the Waite Court had approved a so-called Granger law (sympathetic to farmer interests and named after the Granges, farmer’s organizations) on the ground that a grain elevator was a business affected with a public interest.
Rufus W. Peckham, who would be appointed to the Supreme Court three years later, had dissented when New York’s highest court upheld the law in 1889.
He denounced it as vicious, communistic, and inefficient.
Justice Harlan, however, had been a member of the majority.
It is unlikely that he would have voted to uphold a “communistic” law.
If these issues divided the Court, much more did they attract criticism.
One legal journal sputtered in response to Justice Brewer’s announcement that he found paternalism odious, “What if it is?”
“He was not put there to decide constitutional questions according to what was or was not odious to him personally.”