Friday, September 30, 2005

More on Judicial Activism

According to this e-mail newsletter from the ABA Journal, more than half of all Americans in a recent poll sees a "judicial activism crisis."

I quote: "A majority of the survey respondents agreed with statements that 'judicial activism' has reached the crisis stage, and that judges who ignore voters' values should be impeached. Nearly half agreed witha congressman who said judges are 'arrogant, out-of-control and unaccountable.'"

As far as the voters' values is concerned: 28 percent strongly agreed and 28 percent somewhat agreed with a state governor statement that court opinions should be in line with voters' values, and judges who repeatedly ignore those values should be impeached.

As we all know, the judges are the reason this country has gone to hell. They constantly use international opinion to support their positions, they make up rights, they clearly ignore the written word of the law and the Consitution, and they constantly declare Unconstitutional the laws that Congress passes. We need to get rid of these people who don't rule the way we want them to.

Or, perhaps there's a reason why we have judges. Perhaps the judge's job ISN'T to rule according to the values of the voters, but rather to rule according to the rule of law. Isn't there a reason why we appoint judges as opposed to having public trials? Isn't Congress required to spell out clearly what they intend the laws to mean? When Congress is unclear on something, such as what an "exchange" is for income tax purposes, should the judge stop the trial, wait for Congress to convene and hope that they clarify the situation? Could it possibly be that judges, while imperfect, and while accepting some bad eggs, do a pretty good job at what they do? Is "judicial activism" anything more than a smoke screen designed to throw us off the trail of Congressional accountability?

I commented specifically on the point that judges should rule according to voters' values. Does this mean that as the values of the community change, the rulings must also change, whether the law has or not? Does the judge need to go and poll the public to find out what they are supposed to say? Or do they need to rule according to the Constitution, which supposedly is the foundation of our society, current value system notwithstanding? In that vein, I agree with what Professor Charles G. Geyh says: "[The idea that judges should] somehow follow the voters' views really reflects a fundamental misunderstanding of what judges are supposed to do. They should only be criticized when they ignore the law and start infusing their own values into the law regardless of the law."

But then, we are in the era of the coffeehouse genius, the YODA (Young, Opinionated, Directionless Artiste), who knows the problems with everything and how to solve it all, but lacking the actual motivation to actually get up and do anything. And thus they get their opinions by what they hear on the news and in the papers, and on the net. Perhaps the statistics in these polls fall along Disraeli's definition of lies...


Michelle said...

Very interesting and informative Steve. We too complain (lol, me especially) od judicial activism, but they no where near have the scope as they do there. They appear to take a more active role in the States.

Jeff said...

very good post. You explained it well.

Bookworm said...

The problem is the frequency with which judges blatantly ignore the law and impose their own value system in its place. I'll go my grave remembering the judge who heard a demurrer (aka motion to dismiss) I brought, agreeing with me that the plaintiff had brought an invalid cause of action, but nonetheless allowing the lawsuit to continue on the ground that "I think there's something there." (A ten week trial revealed that, of course, there was nothing there.) Then there were the appellate judges who falsified counsel's arguments in their opinion to justify a conclusion. (True story.)

It is true that judges often use their blatant perversions of the law to benefit the more pathetic character in the case, but that's no way to run a judicial system. Rules of law exist so people can know in advance how to conduct themselve (more or less). Judges who start thinking that their black robes are akin to a priest's vestments, where they have a direct line to God, are a very scary thing. The rule of law falls by the wayside, and the rot sets in very strongly. The half of American people who are afraid of judicial activism have reason to be afraid, because a system without clear guidelines -- enacted by legislatures and reviewed by judges -- is a very amorphous and scary place indeed.

Matthew said...

Contrary to what Rep. DeLay thinks, judges are not supposed to be accountable to the people.

Steve said...

Michelle, I do my best.

Jeff, thank you. It's always nice to hear a new voice.

Bookworm, I don't disagree with you that there are judges who overstep their bounds. It's not a dilemma unique to the Judiciary. Various military officers from time to time have gone a little haywire in their behavior when granted power. Even Fast Food restaurant managers (19 year old kids) can have problems handling the new responsibility that comes with the position. I do think there should be a review session for judges who overstep their bounds consistently and who forget that their first job is to defend the Constitution.
Your fears are based on firsthand (or very close secondhand) knowledge that I and others don't have. The average pollster doesn't have a college degree (Fewer than half of America has a college degree, from what I remember), and don't have the opportunity to see these acts that you've witnessed for themselves. As such, they rely on the statements of those who say things on the matter, and the most vociferous of those has been those in the mold of Representative DeLay, and other congresspeople who like having the veil of near absolute unaccountability of the judiciary to cover their own sloppy work.
I don't envy Congresspeople. They have a very heavy burden, but it's one they chose to take upon themselves. When they do screw up with the way they draft a law, and the outcome is different than they want, then they need to suck it up and say "I screwed up," not blame the "activist" judges.
I think that the people who replied to this poll probably are those who don't really know what goes on in a courtroom or in the judge's chambers, and instead believes what they hear all over the news, and if you asked the 500 or so pollsters to name a recent instance of judicial activism, the majority would be unable to. That is my beef with the poll.

Matthew, I concur