http://www.stopactivistjudges.org/
Heaven forbid these judges do things like interpret the Constitution in ways that support the common good. If they do something that we don't agree with, especially if we don't understand the rationale beyond our own little tunnel-vision approach to politics and the changing world structure, then they must be stopped! Let's find ways to promote our half baked resolutions at the expense of people who have spent their entire careers/lives understanding what they're doing on a level higher than the average american, lest they do things like, stick up for underrepresented minorities, the overarching purpose of the Country and the inaction of Congress to adopt to the changing times.
I don't agree with all the decisions that the Court has reached in its history, but I respect the ways they reach those decisions, and I recognize that they understand the situations and the ramifications much better than I can at this point in time. I don't think "stopping" them is a good idea, especially since it ultimately plays into the hands of Congress, who appears to he affected most by judicial decisions, as it's their influence that is kept in check.
6 comments:
I liked your comments about the Constitution over at my blog, Steve. Certainly the federalists weren't afraid of judges -- they intended them to be an important part of the balance between legislative and executive power. However, when I think of activist judges (and I've had the dubious pleasure of appearing before many of them in the past decade plus), I think of judges who don't have that same respect for the balance of power. Kennedy perfectly exemplified that when he looked to European law to justify a sea change in American jurisprudence. Last I looked, European law, and a UN charter the US refused to ratify in relevant part, were not part of the tripartite system our Founders envisioned. Activist judges also tend to put their feelings in advance of all other analysis. "I feel it's cruel, therefore it's cruel." Supreme Court judges dress this "feelings" law up pretty well, so that it has a patina of legalism glossed over it. When you spend more time before State Court judges, you'll see that they don't make that effort.
Regarding activist judges, you may also find interest a post over at The Paragraph Farmer (a post that I just realized kindly links to me), in which he discusses at greater length Scalia's actual comments -- and caveats -- about activist judges. Check it out here: http://paragraphfarmer.blogspot.com/2005/03/scalia-dance-remix.html
Thank you for your compliments, Bookworm. I do appreciate it.
I understand that European law and UN charter were not intended in the tripartite system, and I know that this isn't the first time that Justice Kennedy used international opinion to support his decisions. But, didn't he rely primarily on the notions that only 19 states allowed Capital Punishment for minors and of those, only 3 have actually done so in the last 10 years, and then use his questionable international opinion to support that conclusion? Is it necessarily wrong to look out to the world (if done properly, and not just to what 5-6 nations do) and see what is done by and large to work as a barometer of sorts on American behavior?
I think my beef stems more from what the masses consider an "activist judge." For the most part, I think that activist is something of a magic word to the public at large - I don't like the decision they made on (this) issue, so they are activists.
I have a profound respect for all the Justices, as I think that they as a whole do a phenomenal job (much better than the other branches) of policing themselves and ensuring that they don't overstep their bounds. I also think that this vigilance is especially necessary in the Judiciary, as their checks are harder reached than the other branches' checks.
On a side note, if you read down a few lines, you'll see a post I placed regarding term limits. Given your experience in the field, would you support a term limit system for federal judges?
I forgot to thank you for your input on this matter, as well. I certainly appreciate the contrary opinion to what I post, and your perspective on the matter is a true bonus, given your experience. Thank you.
A friend of mine had an interesting comment about the balance of power between the legislative and the judicial process. His take was the it is the legislature's responsibility to begin things -- to enact statutes, to create or change laws -- while it is the judiciary's role to have the final say. In his view, judicial activism occurs when the judges step in without giving the Legislative process a chance to play itself out. Interestingly, in the most recent New Yorker, there is a profile of Justice Scalia (a fascinating profile, by the way), in which it turns out that even some of the liberal justices felt that the Roe v. Wade decision was in error, since it short-circuited the legislative process. As I've said, this is the single bad legacy of the Civil Rights movement -- the liberal's belief that they should never wait for the legislative process, but should immediately shop for a sympathetic judge to deliver the final word on any subject.
Steve: I found our discussion so thought-provoking, I've blogged on it over at http://bookwormroom.blogspot.com/2005/03/activist-judges.html
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