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July 12, 2005

Focus Group Phrases vs Reality

-- by Dave Johnson

We often find ourselves arguing over the things right-wingers say. That is a distraction. We should instead learn to focus on what they do. One form of this is the STF Rule, when right-wingers accuse it usually means that is what they are themselves doing. Say vs. do.

It happens over and over and over. They throw a bunch of smoke in the air and we chase it instead of keeping our eye on what is really going on. It's like the Peanuts cartoon, where every year Charlie Brown runs up to kick the football, and just before he gets there Lucy snatches the ball away and he flies in the air and lands on his head.

In a recent NY Times piece, So Who Are the Activists? the authors applied actual data (reality, or the doing) to test the right-wing accusatory phrase "judicial activists" (the words).

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

[. . .] We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so.

The Seeing the Forest Rule -- they are accusing "liberal judges" of being "activist judges" and it turns out that it is the right-wing judges who are the activists! I am so very surprised!

So here is how it works. The right-wingers hold focus groups and ask, "if we told you so-and-so, would you believe such-and-such?" And then they go out and spread the so-and-so, whatever it is, in their effort to persuade people to believe such-and-such. They find out that people don't like "activist judges," or at least react negatively to the phrase, and know that they are going to be appointing judges who are activist, so they repeat that Liberals appoint activist judges in order to get that fixed in the public's mind.

And they follow a strategy of first getting people to believe one thing, and then building on that by adding new elements that depend on the belief they previously established. This is a strategic narrative. It unfolds into a story. "Liberal activist judges" is part of an unfolding narrative of "liberals' meddling with people's daily lives. It has nothing whatsoever to do with the truth, but it is useful for persuading people to support right-wingers.

Posted by Dave Johnson at July 12, 2005 6:06 PM

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Comments

Well, when right-wingers use the word "activist" it usually means someone creating new law, not just interpreting it, creating it whole-cloth; the "stricking down" part is a minor definition.

But, I support activist judges, there is a good article in the current issue of "Reason" argueing for activism from the bench.

Posted by: Pericles at July 12, 2005 6:48 PM

Haven't Janice Rogers Brown and Priscilla Owen pretty much created law out of whole cloth?

I have to say that I'm not thrilled with the prospect of a lifetime committment to judges who admit they (Brown) do not believe in the law of our government.

Posted by: grannyinsanity at July 12, 2005 6:54 PM

And I suppose you can even give an actual EXAMPLE of a judge "creating new law, not just interpreting it, creating it whole-cloth"?

Posted by: Dave Johnson at July 12, 2005 10:05 PM

The 'liberal activist judge' label has less to do with the decisions than with the judiciary upsetting expectations, especially long-settled expectations. Very few Americans have any understanding of the role of the courts, particularly the US Supreme Court, as a co-equal branch with the authority to say what is constitutionally permitted.

When the Warren Court overruled separate but equal, the entire founding mythology of the American south was ruled un-American. The cognitive clash was just too much to take and the populist attacks on the Supreme Court for its 'activism' began.

The Warren Court decisions that extended the fourth and fifth amendments to state prosecutions, notably Mapp and Miranda, provoked outrage at the thought that 'criminals' had any right to anything at all. Those of us old enough will recall that Miranda was an issue in the 1968 election. Both Nixon and Wallace ran on 'law and order.'

The line of cases from Griswold to Roe wasn't created out of 'whole cloth' (it was penumbras), but it did establish a 'right' that was not stated or even obliquely referred to in the constitution.

Lacking any ability to express their opposition at the ballot box against federal judges, the attacks on 'liberal activist' judges seems inevitable.

I'm not saying that people were right to oppose Brown, or Miranda, or Roe. I'm just saying, what should we expect them to do? Go along with it?

What do you suppose the right wingers would have been doing for the last five years if the Supreme Court had ruled in favor of counting votes in Bush v. Gore, and Gore was sworn in?

Posted by: James E. Powell at July 13, 2005 12:48 AM

Man you're tough...
Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999)
The majority expressly stated that such an interpretation "would have us judicially amend the statute to add an exception not implicitly contained in the language of the statute." 996 S.W.2d at 867

Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475 (Tex. 1995)
Justice Owen wrote the dissent, and would have held that the manufacturer was protected by the statute of repose because its product was an improvement to real property. Such an outcome would have cut off the rights of a person injured by a defective product to sue the manufacturer.


http://www.pfaw.org/pfaw/general/default.aspx?oid=1327

Posted by: grannyinsanity at July 13, 2005 2:24 AM

I HTML'd and it didn't work.

Anyway, their creating things out of whole cloth would be mostly in their dissents based upon personal views although other judges may come up with the same result based on law and prior precedent.

I heard what you said, but I couldn't get a grip on the tone.

Posted by: grannyinsanity at July 13, 2005 2:57 AM

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