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Analysis: 'Judicial activism' Hard to Define

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    Analysis: Judicial activism Hard to Define Despite Sudden Uproar over Subject By Robert Marus Associated Baptist Press April 26, 2005 WASHINGTON (ABP) --
    Message 1 of 1 , Apr 26, 2005
      'Judicial activism' Hard to Define Despite Sudden Uproar over Subject
      By Robert Marus
      Associated Baptist Press
      April 26, 2005

      WASHINGTON (ABP) -- Even though "judicial activism" may simply be in
      the eye of the beholder, according to legal experts, it is a recurring
      charge against judges that is almost as old as the Republic itself.

      But that hasn't kept the charge from becoming the latest political
      news. Whatever it is, "judicial activism" has Washington and the
      nation in an uproar, emerging as the Religious Right's latest rallying
      cry in the culture war.

      "Our judiciary has banned prayer in schools and evicted Christmas
      displays from town halls," said House Majority Leader Tom DeLay
      (R-Texas), to a recent conference of religious conservatives in
      Washington. "These are not examples of a mature society, but of a
      judiciary run amok."

      And Focus on the Family leader James Dobson, speaking in Kentucky
      April 24 to a rally designed to push President Bush's nominees to
      federal courts, said "the issues we care about and the values that are
      important to us" are being threatened by court decisions.

      "There is a majority on the Supreme Court that is ... unaccountable
      and arrogant and imperious and determined to redesign the culture
      according to their own biases and values, and they're out of control,"
      Dobson said.

      What could provoke such strong language by DeLay, one of Congress'
      most powerful leaders, and Dobson, patriarch of the evangelical right?
      Perhaps these two factors -- a highly partisan political debate over
      judicial nominees in Washington and recent court decisions that have
      particularly outraged conservative religious activists.

      The recent Terri Schiavo case -- in part due to the emotional issues
      it raised -- brought intense scrutiny to the role of judges in dealing
      with controversial cases. But for many conservative religious
      activists, an allegedly out-of-control state and federal judiciary has
      been an issue of concern for years.

      In the April edition of Focus on the Family's Action newsletter,
      Dobson leveled the "activism" charge at the judiciary in general.

      "How could such a great and freedom-loving people have allowed
      themselves to be dominated by a handful of unelected, unaccountable,
      arrogant and often godless judges, many of whom receive lifetime
      appointments and regularly circumvent the democratic process?" he

      Dobson mentioned Thomas Jefferson's warnings about the Supreme Court's
      famous 1803 Marbury vs. Madison decision, which firmly established the
      principle of "judicial review," which means that federal judges get to
      examine laws enacted by legislatures to ensure that they conform to
      the Constitution.

      "What we have today, 202 years later, is an oligarchy (rule by a small
      cadre of elites)," Dobson wrote. "The courts simply strike down laws
      and policies they don't like, whether their opinions reflect the
      provisions of the Constitution or not."

      That's exactly what many conservatives mean when they accuse a judge
      of "activism," according to Tom McClusky, director of government
      affairs for the Washington-based Family Research Council.

      "Activist" judges are "judges who seem to reach beyond the
      Constitution and the power granted to them in the Constitution -- and
      the laws passed by Congress or even by state legislatures -- and [who
      end up] making law, instead of their role through the Founding
      Fathers...to interpret law," McClusky said. His group has been at the
      forefront of many of the most controversial federal court cases in
      recent years -- such as the Schiavo case and cases over
      government-sanctioned religious expression.

      When asked for examples, McClusky cited the four-judge majority on the
      Massachusetts Supreme Judicial Court that, in a 2003 decision, paved
      the way for the legalization of same-sex marriage in that state.

      "I mean, they cited international law, they cited their own personal
      opinion on the issue of same-sex marriage," McClusky said. "It's
      Congress' role to pass legislation, and it's the judiciary's role to
      interpret that legislation. But, more and more, they seem to be
      completely changing any intent" that legislators might have had in
      passing laws.

      The problem, several legal experts said, is that interpreting the
      Constitution -- particularly in a society far more complex than its
      writers could have dreamed of -- is about as exact a science as
      interpreting the Bible.

      "Nobody ever complains about 'judicial activism' when they agree with
      the opinion," said Brent Walker, executive director of the
      Washington-based Baptist Joint Committee for Religious Liberty.
      "People try to make a sharp distinction between interpreting the law
      and legislating from the bench, but which one that is is often in the
      eye of the beholder."

      "A 'judicial activist' is a justice with five votes, and 'judicial
      activism' is an opinion that you disagree with," said Walker, whose
      organization advocates for a strong reading for both of the First
      Amendment's religion clauses -- which ban both government
      establishment of religion and restrictions on the free exercise of

      For example, he noted that many conservatives have criticized a recent
      Supreme Court decision on capital punishment. In it, the court's
      majority found the practice of executing convicts who were under 18 at
      the time they committed their crimes a violation of the Eighth
      Amendment's ban on capricious punishments.

      "When you try to unpack the meaning of 'cruel and unusual punishment'
      in the Eighth Amendment, what did it mean 200 years ago and what does
      it mean for us today?" Walker asked. "There's a lot of room for
      disagreement over whether applying those four words and that very
      general concept amounts to interpreting the law or making the law."

      Charlie Geyh, a professor at Indiana University School of Law, said
      the very nature of judging -- determining what the law is and applying
      it to an individual case -- often lends itself to the charge of
      "activism" from those on the losing side.

      "The tricky part is when there is a case where the court ... fills the
      gap by saying, 'We don't know what the law is,' the loser is almost
      invariably going to think the judge has gone further than he should
      have in filling that gap," he said.

      He referred to the Marbury vs. Madison decision itself. "It was an
      open issue. There was nothing clearly stated in the Constitution to
      give them that power [of judicial review], but the court looked at the
      Constitution and said, 'Yes, we have that power,'" said Geyh, who has
      a forthcoming book on the courts and Congress.

      "The judges have to be activist in some sense, because the only reason
      that they are being asked to resolve questions is because they are ...
      questions that are undecided," he continued.

      The conservative critiques of judicial activism in the modern
      environment, Geyh contended, come in two main forms. "One is to say
      that it's one thing to acknowledge the flexibility of the
      constitutional language and another thing to abuse it," he said,
      referring specifically to cases in which courts have determined
      Americans have rights to privacy, reproductive autonomy and other
      civil liberties, even though those rights are not protected explicitly
      by the Constitution.

      "In those areas, from the conservative standpoint, there's flexibility
      perhaps, [but] not as much as these judges have given to it," Geyh
      said. "That approach [against judicial activism] is a perfectly
      honorable one."

      But, he continued, "the second is to use it as a political buzz
      phrase, with which I have problems." That view, according to Geyh,
      contends that, if judges "decide something that is contrary to our
      view of the law, they must necessarily be activists."

      But the "activism" accusation increasingly is fueling a political
      debate in Washington. Democrats in the Senate have blocked 10 of
      President Bush's judicial nominees because of what they call extremist
      beliefs on certain issues. Meanwhile, Bush -- and his supporters in
      the religious conservative community -- have mounted an all-out effort
      to get all of his nominees passed because those judges "won't
      legislate from the bench," as Bush has repeatedly said.

      Historically, appointees of conservative Republican presidents have
      been accused of activism of their own, Geyh said. For instance, he
      noted, the current Supreme Court -- dominated 7-2 by Republican
      appointees and considered very conservative by mainstream legal
      scholars -- has struck down laws passed by Congress at a much faster
      rate than its more liberal predecessors.

      "When [Chief Justice William] Rehnquist's court has gone ahead and
      looked at Commerce Clause jurisprudence, it turned back the clock 60
      years and ignored congressional power," Geyh said. "Now from the
      standpoint of liberals, that is activism."

      "From the conservatives' account, that is simply correcting the course
      -- going back to the original intent [of the Constitution]. So, each
      side can lay claim, can point the finger to the others and say 'you're
      being activist.'"

      He also cited the court's still-controversial 5-4 decision in the 2000
      Bush vs. Gore case that effectively ended that year's drawn-out
      presidential election -- and gave the presidency to Bush. Gore
      supporters accused the court's majority of ignoring their own
      precedents in ruling on cases involving the Equal Protection Clause of
      the Constitution.

      Brent Walker noted that "it was the most conservative justices, with
      Justice [Antonin] Scalia leading the way, who gutted the Free Exercise
      Clause" of the First Amendment in a 1990 decision, Employment Division
      vs. Smith, that limited the religious-liberty rights of individuals
      and groups. "The court overturned decades of precedent without either
      party urging it to do so, [either] briefing the issue or addressing it
      in oral argument," Walker said.

      One of Bush's filibustered nominees to the 5th U.S. Circuit Court of
      Appeals was once herself accused of an "unconscionable act of judicial
      activism" -- by Bush's own attorney general. The accusation was made
      by then-Texas Supreme Court Justice Alberto Gonzales against his
      colleague, Priscilla Owen, and two others who dissented from a
      majority opinion on an abortion case.

      And some groups repeatedly accused the judges involved in the Schiavo
      case of "activism" -- even though the main Florida state judge, George
      Greer, is a conservative Republican and Southern Baptist whose
      decisions repeatedly were upheld by higher state and federal courts.

      "The truth is, 'judicial activism' is just about today's emptiest
      soundbite," said Jesse Rutledge, spokesman for the Justice at Stake
      Campaign. "It's come to mean any decision you don't like, or, more
      broadly, any series of decisions you don't like."

      Rutledge's group was formed about two years ago, he said, "to address
      the political attacks coming from politicians and special-interest
      groups" against judges and their rulings. Justice at Stake believes
      such attacks undermine public trust in judicial decisions -- which,
      they say, ultimately undermines the institution of the independent
      judiciary and the constitutional order.

      But Rep. Lamar Smith (R-Texas), addressing conservative activists in
      Washington earlier this month, said it's not undermining the courts
      when, in his view, they have usurped the authority of the other
      branches of government.

      "Activist judges regularly deny the Constitution when they take for
      themselves powers guaranteed in the Constitution to the executive and
      legislative branches of government," he said. "Congress is right to
      evaluate judges when they behave like unelected superlegislators. When
      judges step out of bounds, Congress should in fact raise a red flag.
      This is not an attack on the separation of powers. It is Civics 101."

      Rutledge said attacks on the judiciary from liberals are just as
      harmful as those from conservatives.

      "Many liberal groups are engaging in the same angry rhetoric and are
      trying to match fire with fire and say that there is such a thing as
      conservative 'judicial activism,'" he said. "From where we sit, we
      think the term is so empty as not to mean anything."

      As a remedy, Rutledge said, the warring parties should set the term
      aside "and engage in a more comprehensive, thoughtful debate about the
      role of the courts in our society."

      "We charge our courts with making the most difficult decisions," he
      continued. "That is what they are there to do. That is their job. And
      there are always going to be controversial cases, there are always
      going to be losers, there are always going to be hurt feelings that
      come out of our system of government. And if every time you lose, all
      you do is scream until you're red in the face at the umpire, then, you
      know, maybe you're just a sore loser."

      But Rutledge's dream of a civil debate on the role of the courts may
      not be taking place anytime soon, if the current rhetoric prevails.

      Dobson, in his Action newsletter article, called for the impeachment
      of six of the nine U.S. Supreme Court justices -- four of them the
      appointees of Republican presidents. He called for all of Bush's
      nominees to be approved. "These judges are all committed to applying
      the Constitution of the United States in a conservative manner and
      interpreting it as it is written," he said.

      "If these individuals, and many others like them, were to be appointed
      to the federal bench, we could make significant strides toward the
      restoration of religious speech to the public square, the enforcement
      of laws regulating obscenity, the protection of voluntary prayer in
      public schools, the defense of the institution of traditional
      marriage, and the protection of pre-born babies from the horrors of

      "In short," he continued, "the makeup of the federal judiciary in the
      coming years will play a key role in determining how these issues --
      and many others that we hold dear -- will be decided, and in
      demonstrating what kind of people we are as a nation."
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