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Law Rules

How we resolve our disputes

Entries in activist (2)

Tuesday
Jul142009

Supreme judicial activism

Is it possible for a lawyer to resist commenting on a Supreme Court confirmation hearing?  I can’t. So here goes.

It is hard for me to quit shouting at the TV when I hear Senators from both parties and Judge Sotomayor proclaim that judges should merely apply the law and not make it.  They all know that the Constitution is “law” and when a legislative enactment runs afoul of a Constitutional provision, the courts must strike down the statute.  At the appellate court level, all decisions are precedent to some extent, so judges are always making law.  Why does everyone pretend otherwise?  In my last post (July 9), I suggested that “activist” judges were necessary for democracy to exist.  Am I the only one who believes that?   I still want to know what the definition of an activist judge is.  If it is one who “makes law,” aren’t they all “activists”?

Thursday
Jul092009

Judicial activism

Returning from a long 4th of July holiday weekend, I feel the need to wax patriotic.  I love this country, and what I love most is the Constitution that has served us so well for almost 220 years (or at least for the last 150 years, since the post-Civil War amendments abolished slavery). But there are still many people who do not understand or appreciate what the Constitution does for us.  A recent opinion column in our local newspaper complained that “judicial activism” sidesteps democracy.  I believe that just the opposite is true.  Judicial activism is necessary for democracy.  While there is no precise definition of the term, “legal activist” is frequently used to describe any judge who makes a decision that the users disagree with.  They complain that by making decisions that certain laws or governmental actions are unconstitutional, the courts are making law.  Of course they are!  Our democracy and liberty depend not only on majority rule, but on the individual rights guaranteed by the Constitution and the Bill of Rights. Without the right of judicial review, the separation of powers established by the Constitution cannot protect us from the tyranny of the majority.  Remember, the Third Reich was popularly elected by German voters.  Without an effective (i.e., “activist”) judiciary, the legislative and executive branches could dictate what religion people could and could not practice, where they could live and work, and ultimately who could live and who would die, all based on their race, religion, ethnicity, politics, gender or sexual orientation.  People who complain that judicial activists use the courts to subvert the democratic process are missing the point.  They are the ones who are most likely to sidestep democracy.