Posted by: Randy Allgaier | October 29, 2006

Activist Judges: Political Campaign Rhetoric NOT a Legal Debate

The courts are under attack.  The two other branches of government don’t like the check the courts have in the system of checks and balances.  Let’s remember that the Supreme Court delivers unanimous decisions in 40% of the cases heard.  But it is the high-profile cases, handing down decisions concerning hot-button issues like the death penalty and stem cell research that garner all the attention of the media and the politicians.  But instead of gaining respect for performing their constitutional duty, justices and other jurists are railed by politicans and labeled “judicial activists” (aka spawns of Satan).   This has been packaged to the American public by politicians as out of control nuts in black robes that have personal agendas and are out to destroy our way of life.  “Judicial activists” are just a small step up from terrorists in their desire to destroy the fabric of the country according to the rightwing dingbats. Of course the moniker is used by the social conservatives when an opinion is not in lockstep with a conservative ideology.  Justices Scalia or Thomas could write a decision that is precedent setting- but surpirsingly they are not “judicial activists”.  Someone in the Republican party has studied and excelled in vocabulary of propoganda— could it be another gift from dear Carl Rove?


The most remarkable example of the “debate” (actually partisan  rhetoric) around “judicial activism” is of course the Teri Schiavo case.  After the Florida courts did their due diligence by upholding the law carefully including the appointment of a guardian ad litem for Ms. Schiavo in order to protect her legal rights as Mr. Schiavo and the Schindler family were embroiled in a bitter legal battle.  The courts did all they should do to make a determination in this case.  But that wasn’t enough for the radical religious right.  They turned this into a political circus and created the most appalling intrusion into a personal matter every witnessed in this country when the Congress and the President took authority away from the Florida courts (when the Florida Supreme Court ruled contrary to the wishes of the right wing ) and turned it over to the Federal courts.  The right wing nut bags became unhinged when the United States Supreme Court refused to hear the case.  Accusations of judicial activism flew higher and faster than a super sonic jet.


By now, we’re all familiar with the rhetoric. When Republicans are unhappy with a federal judge’s ruling, they cry out for more “strict construction.” If Democrats do not approve of a federal judicial nominee, they warn that the nominee will circumvent established law to legislate morality. To many Americans, this bickering sounds like the same old partisan politics.


Should the average citizen be concerned about judicial activism? Or are politicians just making a big fuss over nothing? And what the heck is an “activist judge” anyway?


There is no such thing as an activist judge. An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest.  Generally, when politicians call a judge an activist, they are accusing that judge of ruling based on his or her own personal belief system, rather than according to the law.


Everyone has heard the term “activist judges” so many times — from the president, from Congress, from the angry rightwing nutbags that you can define it- or at least know their definition of it.  Here’s the mantra- Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars.


We all evidently believe that you’re either for the liberal activist judges or against them. Folks on the left say they protect minorities from majority tyranny, as the Massachusetts Supreme Judicial Court did last year in the gay marriage decision. Folks on the right say they act as unelected superlegislators. Folks on the left say they are interpreting a living Constitution. Folks on the right say they are unmoored from any fixed point.


In order to grasp the significance of such an accusation, it is important to understand the role of the federal judiciary as defined by the U.S. Constitution. The Constitution divides power equally among the three branches of our government, the legislative, executive, and judicial. The legislative branch creates federal law in the Senate and the House of Representatives. The executive branch, i.e. the president, cabinet members, and staff, enact and enforce the laws that Congress passes.


The job of the judicial branch is to interpret the law where it is unclear or in question. When laws or rulings of lower courts are challenged, Supreme Court justices must examine the law and determine if the intention of the law has been upheld. Often, justices must determine whether federal or state laws are constitutional, or if Congress has passed a law without any constitutional authority to do so. Unless they are unanimous, Supreme Court rulings have two parts, the majority opinion and the dissenting opinion, wherein the justices explain their reasoning and their interpretation of the law.


Now this is where things get sticky. Judicial rulings become the basis for future legal arguments – this is known as legal precedent, or “case law.” Suppose a law is passed forbidding people to walk dogs in public parks. Now suppose you train your cat to walk on a leash, you walk it in the park, and a police officer gives you a ticket. You go to court and argue that the law forbids dog-walking but does not mention walking cats. The judge rules against you, reasoning that the law applies to walking any pet. Some politicians rally to your side, accusing the judge of creating a law against walking cats, where no law formerly existed. Other politicians rejoice in the decision, arguing that the judge upheld the intent, if not the letter, of the law.


This is the battle that rages in Washington, except federal judges are not deciding cases about walking cats and dogs. Instead, they are ruling on cases involving abortion, same-sex marriage, juvenile death sentences, state sovereignty, and other issues about which Americans feel passionately.


In 2003, the Massachusetts Supreme Court ruled that preventing gay couples from getting married was unconstitutional. The court upheld that nothing in the state statute restricts marriage to the union of a man and a woman. President Bush and Republican politicians immediately accused the
Massachusetts court of judicial activism – redefining marriage based on their own ideology, rather than the intent of the law.


Texas Supreme Court judge Priscilla Owen, a Bush nominee who was recently appointed to the 5th U.S. Circuit Court of Appeals, spent months defending herself against accusations of judicial activism before she was confirmed. Democrats pointed to a dissent she wrote in 2000, on a case involving parental notification of children receiving abortions. Texas law required the parents be notified, but allowed that notification to be bypassed if a judge decided it was in the best interest of the child. Owen wrote in her dissent that one of the girls in question, at age 13, was too young to make up her own mind. Political opponents cried judicial activism, citing the case as an example of Owen’s desire to deprive citizens of rights.


“To conservatives, activist judges are those who permit or compel activity in which the opinion of conservatives can only be done in the legislative branch,” Judge Napolitano said. “To liberals, activist judges are judges who prevent the government from doing the things the Legislature wants to do.” Many legal experts agree that accusations of judicial activism are nothing more than political name-calling, and that judges are supposed to interpret the law and rule according to their own interpretations.


So the core of the argument is the role of the judiciary. The framers of the Constitution recognized the importance of the judiciary branch; it differs from the other two branches in several significant ways. For instance, Supreme Court justices are appointed for life. The reasoning behind lifetime tenure is that sometimes justices must make decisions that are unpopular or counter to the will of the majority. Because they are not elected, they are free to uphold the law in spite of potential political fallout.


In response to criticism, former Chief Justice William Rehnquist said that judges should not have to worry about politics or public opinion. Instead, he said, judges should uphold the law, regardless of whether that makes them popular or not.


Contrary to what Americans hear daily, our country is not and never has been a democracy. Democracy is mob rule, where the will of the majority is forced on the minority, and the minority has little or no representation.  America is a constitutional republic, governed not by the majority, but by the rule of law. Since the people are represented by the politicians they elect, of course the majority party often has more representation, however the importance of a sound judiciary in a constitutional republic cannot be over-estimated. If the judiciary begins imposing the will of the majority when popular opinion stands in opposition to the law, then the judiciary is enforcing mob rule, and our constitutional republic is lost.


Because federal judges are appointed, not elected, many Americans do not know who they are or what they are doing. But the reason for that is not because judges’ actions or identities are kept secret. The reason is apathy on the part of the American public. Court opinions are widely available to anyone who wants to read them. As former Justice Sandra Day O’Connor recently said in a CNN interview with Jeffrey Toobin, Judges have to describe their decisions by writing opinions; neither the President nor the Congress has such a requirement.


It can be argued that the actions of the federal judiciary have the greatest impact on the daily lives of citizens, and that Supreme Court rulings shape the fabric of American society more than the legislative or executive branches ever could. The more educated the American public becomes about its judiciary, the less politicians will be able to scream “activist!” and get away with it. Americans are tired of politics as usual. Knowing what is going on behind the smoke-screen is the first step toward holding politicians accountable for name-calling, mud-slinging, and counter-productive dialogue.

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