Judicial Activism

[DanUCSB]

So I'm up late, reading the entries on RL's Supreme Court thread, and everything seems to be leading back to one issue: judicial activism. We hear about it all the time, it is decried all over the place, but it seems no one ever quite puts a finger on it. It seems to be less a solid phenomenon and more of a Potter Stewart-style "but I know it when I see it" sort of idea.

So here's the question: what, exactly, is "judicial activism"? I'm sure some of our in-house counsel can help us with this. Is there a hard-and-fast rule as to when judges are legislating from the bench, and when they are just making decisions (which is, of course, what we pay them to do)? Or is it more of a case of "any time a judge makes a ruling I disagree with, it's judicial activism"? Are there any hard lines? How can you tell the difference between legislation and interpretation? Obviously, interpretation is their job; that's the point of the judicial branch in our system. Is "judicial activism" merely when a judge interprets the law opposite to the way you think it should be interpreted? Or do we have a class of judges out there making new law every day? What's the difference?

I will reserve my opinions for a moment, so as to not taint any forthcoming answers.

[Roguish Lawyer]

Originally Posted by DanUCSB

I will reserve my opinions for a moment, so as to not taint any forthcoming answers.

No, feel free to start. We shall use the Socratic method.

Where are our law students and college boys? Google is up and running 24/7, you know.

[Swindleous]

As you indicated, it's a very broad term, but here's a fairly in-depth article on the subject.

http://www.tsowell.com/judicial.htm

As for how I feel about it, it can be both good and bad. While it's place is to serve as a balance, allowing judges to step in under certain circumstances to solve problems other areas of the government are ignoring or failing to resolve, it can also be horribly detrimental, as a judge can basically just toss the rule of law out the window. I'm nowhere near a law major though, so I can't really go too far into the semantics of it, but hopefully someone else can.

[vsvo]

In school we read mostly appellate and Supreme Court cases, because that’s where common-law is developed. Trial judges don’t like to get reversed on appeal, so they usually look for binding authority in their jurisdiction and follow it. Regarding judges legislating, I read a lot of opinions where the judge says this is something for the legislature to decide, or if the legislature wants this result they should pass a law that says so, so I don't know about judges legislating. I also don’t know if there’s an increase in “activism.” I just see it as judges doing what judges have done. It’s the nature of the system which imparts on judges the duty to interpret the law. Thus, if judges feel a decision needs to go a certain way – whether in the interests of fairness or just plain it’s the right thing to do (in their minds) - they will twist and stretch precedence and their interpretation of the facts to the extent necessary to arrive at their decision. In other cases judges will decide times have changed and thus the law needs to change as well. In an adversarial system someone’s always going to be unhappy with a decision.

[TPD1280]

Judges are still human beings with emotions and beliefs. To think that they can make decisions without being influenced by these is naiive. To hope that they will at least try is the basis for our faith in them as Jurists.

Judges also are people with career plans. I have seen Judges in the County Superior Court hand down decisions that were quite obviously designed to get their names noticed when the time comes for selection to a State or Federal bench. They want to leave a legacy on their way out to retirement, or have their name attached to an important legal decision that will identify them as a mover and shaker in the legal scene.

Another situation that would appear to some to be legislating from the bench is in the case of a poorly crafted law that is struck down as unconstitutionally vague.

Worse yet is when one side of the legal apparatus comes into court unprepared to argue/defend their case. As a Police Officer, I have seen numerous situations where a smart (assed) defense attorney has presented a challenge that the prosecution team did not anticipate. As a result, the Judge made a ruling based on the merits of what was presented before him/her.

The media spins both scenarios as Judicial Legislation, but in reality it is simply the loser crying foul.

As for the paper linked by swindleous, that was very well written and I find his conclusions hard to dismiss.

[vsvo]

In the recent Memorandum Opinion and Order by Judge Henry F. Floyd granting Jose Padilla's petition for a writ of habeas corpus, there's an interesting discussion regarding judicial activism.

Accordingly, and limited to the facts of this case, the Court is of the firm opinion that it must reject the position posited by Respondent. To do otherwise would not only offend the rule of law and violate this country's consitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties.

For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be.
...
It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else - not the Court and not the President.

Mem. pp 20-21

[uboat509]

I am just an engineer not a lawyer but it seems to me that any time a judge cites a "consensus of public oppinion" about a law rather than its legal and/or constitutional merits, that would judicial activism. My understanding is that it is up to the judical branch to decide what the law/constitution requires and the legislative branch to decide what the people want. I am sure that that is a gross oversimplification but I think it is in the ballpark is it not?

SFC W

[Roguish Lawyer]

Originally Posted by uboat509

I am just an engineer not a lawyer but it seems to me that any time a judge cites a "consensus of public oppinion" about a law rather than its legal and/or constitutional merits, that would judicial activism. My understanding is that it is up to the judical branch to decide what the law/constitution requires and the legislative branch to decide what the people want. I am sure that that is a gross oversimplification but I think it is in the ballpark is it not?

SFC W

Definitely in the ballpark.