Wednesday, May 27, 2009

Rebuilding the Republican Party: Judicial Activism

Today we skip ahead a bit in our series on Rebuilding the Republican Party and talk about judicial activism. You’ll be hearing that phrase and its associated concepts (i.e. “compassion”) a lot over the next month, so this is a good time to make sure that our leaders understand what they’re talking about.

As you saw in the re-worked pledge that started this series, Republicans fundamentally oppose judicial activism. But what is judicial activism, why is it intellectually and morally wrong, and how is it dangerous to you?

Judicial Activism Defined

Judicial activism, simply put, occurs when a judge steps beyond the powers given to them by the Constitution, and substitutes their own opinion in place of the law. This can take two forms, and the left loves them both.

In the first form, the judge creates new law by either finding new rights under existing law or by striking down valid laws of which the judge disapproves, so called “legislating from the bench.” The left loves this because they know that the public will never accept their political views, thus they appoint judges who will impose that worldview on the public.

The second form arises when a judge chooses to misapply or ignore a law so as to favor one litigant. This discrimination is usually disguised as appeals to “exercise compassion” or as calls for “fairness” or “justice.” Leftists love the sense of moral superiority they get from discriminating in favor of the “good guy.”

Why Judicial Activism Is Wrong

Both of these forms are morally and intellectually bankrupt. Our government derives its power (and its very existence) from the consent of the people. We the people created that government through the Constitution, in which we ceded certain rights to the government so that it could work toward the public good, but, in so doing, we put clear limitations on those rights. (We will discuss Constitutional interpretation another day.)

One of those limitations is that we clearly defined the roles each branch of government would play in administering the government. The role of the courts under the Constitution is to apply the law in a fair and unbiased manner. The courts are not empowered to create law. That power rests solely within the legislature. If a law must change, it is up the people to demand that change from the legislature, not for a judge to impose it upon the rest of us.

When a judge legislates from the bench, they are tossing aside the limits placed upon them by the Constitution, so that they can substitute their own personal view of what the law should be. They are stealing powers that belong to the legislature, they are frustrating the will of the people, and they are breaking the very agreement under which we gave them a right to exist. That’s arrogant, that’s illegal, that’s tyranny.

The left likes to counter that this is all for the good. But that’s garbage. If this change is so “good” then convince the voters and have the law changed by the legislatures. Even the Constitution itself can be changed if needed, as it has been twenty-seven times.

Moreover, if it is acceptable for judges to exceed their powers “to do the right thing,” then why not let others in on the act? Why not let the Post Master General withhold mail service from businesses that he or she thinks should be banned (e.g. strip clubs, gun shops, abortion clinics)? How about letting the FBI Director decide what constitutes illegal surveillance? The public might not approve, but who cares, right? It’s all for the public good. . .

How Judicial Activism Hurts You

Judicial activism is dangerous and destructive on a personal level as well. As noted above, the left loves to demand fairness and justice and compassion. And that sounds great. Except that these concepts are in the eye of the beholder. When you set judges free to impose their own prejudices rather than following the law, you open a can of worms that will destroy the judicial system.

Leftists like to think that allowing judges to act compassionately will mean that the good guys always benefit. But I’ve actually practiced. I know the reality. I’ve seen the judges who used to work for insurance companies and who see all plaintiffs as malingerers. I’ve see the judges who always favor the husband, or always favor the wife. I’ve seen the judges who always favor the poor criminal suspect, or the judges who always favor their friends the prosecutors.

If you open this flood gate, law will vanish and it will be replaced by personal prejudice. The winner will be the person who hires the attorney with the best relationship with the judge -- and that ain’t you, that’s the guy with the money. Welcome to the banana republic.

Moreover, even if you could take the bias out of it, the problem with basing rulings on compassion rather than law, is that it’s erratic. Whereas the law looks at the facts as they occurred and applies a ruling that all can anticipate (so you can arrange your affairs accordingly), rulings based on compassion become manipulator’s court. Sure, your ex-husband was the world’s biggest ass, and you did everything right under the law, but he’s one heck of a great actor in court. You lose.

You didn’t commit that crime? But the victim’s cries for justice strike our compassionate cords. Hope you like orange jumpsuits. Or maybe you’re the victim, but the judge feels such compassion for the poor criminal, who had such a rough life, and, after all, he killed your mother so long ago. . .

Compassion works fine if every single judge shares your views. But they don’t. If the law lacks compassion, then change the law. Don’t make a mockery of the legal process.

Think Strategically My Republican Friends

So what does the party do? For the reasons outlined herein, Republicans should oppose judicial activism. That’s a no brainer. But, that being said, there is a problem with simply opposing judicial activism.

If the democrats keep moving the ball ten feet left every time they are in power, and the Republicans respond by simply stopping the ball from moving, the democrats will slowly, but surely, get everything they want.

The only way to stop this inevitable march is to get the democrats to abandon the weapon of judicial activism. It’s time to fight fire with fire: appoint reactionary Republican judges. Don’t be obvious about it, but do it. History has shown that when the Republicans adopt a democratic tactic, the democrats scream bloody murder and quickly try to stuff that genie back into the bottle. That will be a victory for us all.


Patti said...

excellent post. if you don't mind, i'm going to link you at the end of my post today as we speak of the same things, although you are much more grown-up about it than i.

shark week!

LawHawkSF said...

Judicial activism will be a major topic for some time to come, given our Constitutional-Scholar-In-Chief's first nomination for the Supreme Court.

Like most lawyers, I experienced the incompetent or prejudiced local judge on more occasions than I care to remember. Eliminating those judges that are simply stupid, much of the bad judging stems from local problems with how judges get on the bench, and remain there. The truly activist judge takes his or her lead from above--the appellate levels.

Local judges, for good or ill, deal with the daily nitty-gritty of the real world and the human factor is hard to avoid, no matter how conscientious the judge. It is such a given that the human factor is involved at the trial level that there has been an ongoing legal colloquy since the founding of the Republic surrounding the limits of "judicial discretion."

But it is important for non-lawyers and those interested in the legal process to discard a common misconception. Appellate review does NOT concern the facts at trial. The only thing properly heard in an appellate court is the law applied to the lower court case. It is NOT a re-trial on the facts. When you see an appellate court decision, do not be misled by the recitation of the facts of the case. That is only to set the background for the sole true issue on appeal: "Was the law and/or the Constitution applied properly to the facts (which are not in dispute)?"

When I refer to judicial activism, I concern myself almost exclusively with appellate courts at all levels, up to and including the state and federal supreme courts. When Sotomayor made her gaffe about "the appeals courts setting policy" she was not as far off as you might think. Policy itself is indeed not to be set by the judiciary, but appellate courts set the tone and direction for the inferior courts, and that is why judicial activism is so very, very dangerous.

Judicial activism is a mortal danger to our very concept of ordered liberty and republican government, and destroys the one thing that makes our constitutional system different from that of every other major democracy in the world. As an entirely separate branch of government, the judiciary is specifically relieved of the duty of making law. Remember, for instance, that the highest court in England is comprised of the Law Lords, who are just specialized members of one of the Houses of Parliament. Thus our system was designed to perpetuate a government of laws, and not of men. In our system, Justice is embedded in the Constitution as being truly blind to the litigants before her. Only the law and the Constitution are issues before the appellate courts.

Appellate judicial activists remove the blindfold that has kept the appellate courts from ruling based on passion or sympathy or with respect to a single individual. With the blindfold on, all who appear there are treated entirely equally.

Since Sotomayor is the current hot topic, let's take a quick look at what we who despise judical activism are talking about. Here is the oath of office taken by all federal judges: I, XXXXXXX, do solemnly swear that I will administer justice WITHOUT RESPECT TO PERSONS, and do equal right to the poor and to the rich, and that I will faithfully and IMPARTIALLY discharge and perform all the duties incumbent upon me as ______ under the Constitution and laws of the United States." (emphasis added) How, pray tell, does that oath in any way square with Sotomayor's statement that "as a Latina woman, I would be more sympathetic to the plight of minorities than a white man?" I'll give you a hint--it doesn't. It is a declaration of pure judicial activism, and in her case she intends to be entirely partial towards ethnic and racial minorities. Be afraid. Be very afraid.

Captain Soapbox said...

Judicial activism is not only wrong, it's damnably wrong. The Constitution wasn't written on an Etch a Sketch after all. Wasn't Obama the candidate that kept reminding us that words have meaning? Oh yeah what was I thinking they only have meaning when they're words the left approves of. There's a reason he studied Constitutional he could find all the loopholes and/or ways to twist it around to meet his needs. That's my firm belief.

And if I hear the phrase "living Constitution" one more time I swear I'm going to scream. Seriously.

Also I'd like to remind our good people in Congress that the Supreme Court isn't the only instutution in the land that can point out if something is Constitutional or not. Something that would have well served them when the whole bailout/stimulus debate was going on, well for all 3 minutes of it at least. Sure they would have wound up jousting in the SC, but it seems to me that for years Congress has been of the opinion that it didn't matter if what they did was Constitutional or not, they'd do it anyhow and let the courts decide later. That, in my opinion, is a terribly negligent way to do things.

AndrewPrice said...

Patti, thanks! And thanks for linking to the article.

And let me also suggest that everyone check out Patti's site: "Not A Wonk" (it's in our links). She's got a great take on events, very funny and very blunt. It's great!

AndrewPrice said...

Captain, you have just touched upon my next article in the series, in which I will discuss how the right and the left view the Constitution differently and why Republicans should oppose the "living document" argument.

Lawhawk, nice point with the Oath.

Melissa Marsh said...

Great article. More of us need to read it!

freedom21 said...

I recently read a book that made me rethink judicial activism. Obviously as a conservative and a lawyer, I appreciate a set of rules applied consistently and without bias. I would love to hear your opinion.

Dredd Scott's Revenge by Judge Napolitano (the Judge, not to be confused with the dogfaced Canada hater), in it's earlier chapter's analyzes the ramifications of the Constitution and early judges strict application of judicial restraint. Essentially, had the judges acted according to natural law as opposed to the law of the land slavery would have been done away with much earlier (from a legal standpoint).

This is important because, given the rate in which laws are passed these days, it might be up to the judges to move independently.


more on the book found here

John Keats said...

The problem that liberal judges have with the Constitution is one of hermeneutics versus exegesis. Hermeneutics seeks to marry a contemporary reading of a text (and the contemporary problems, beliefs and texts that accompany that reading) with the intent of the authors. The balance that is achieved allows for interpretation beyond the scope of the original text - helpful when the original text does not provide for specific advances in technology, literature, or social structures.

However, hermeneutics runs into a problem when it seeks to solve current issues with the assumption that had they been issues in the past, they would have been dealt with thusly or thusly. Judicial activists use the Constitution the same way they use precedent - as a historical, useful guideline, but not as the basis for the "problems of modernity."

This is where one would hope to apply solid exegesis. An exegesis of the Constitution provides that the words cannot mean what they never meant, i.e., they cannot provide in the future that for which they expressly or implicitly forbade in the past. This is why slavery and gay marriage pose such different questions and beg such different solutions - the former outcome was certainly foreseeable, and the founding fathers anticipated it. Gay marriage was not, and so the solution should not take into account what the founding fathers "would have meant" in this day and age.

Judicial activism is insidious as it is horrifying, because it mounts an attack on the very basis of freedom under the guise of justice instead of revisionism. Its proponents all but eschew exegesis in their judgments, which should worry conservatives - the whole Constitution falls apart if any bit of it can be judicially rendered unconstitutional.

LawHawkSF said...

Freedom 21: Your inquiry is excellent, and a very valid issue in regard to judicial activism. Two thousand years ago, Tacitus said Corruptisima re publica plurimae leges. Loosely, the more corrupt the government, the more laws it has. Sound familiar?

The multiplicity of laws, particularly those in seeming conflict with each other, must be dealt with by the courts. That requires judicial reflection and impartial interpretation. That does not mean that judicial activists have an obligation to write new laws from the bench in order to add insult to injury. The courts are there to rein in the excesses of legislatures and executives, not to add to the confusion.

With all due respect to Judge Napolitano, it must be remembered that "natural law" cannot amend the Constitution. My favorite justice is Justice Thomas because his views on the Constitution incorporate natural law into his interpretation of the law. But it is important to remember that he uses natural law to interpret the Constitution as it exists, not as he would like it to exist. Slavery was built into the Constitution, and no judicial activism, no matter how moral and well-intentioned could change that. Only an amendment to the Consitution could do that. That which is written into the Consitution cannot, ipso facto be unconstitutional unless formally amended. That did not stop activist federal Judge Thelton P. Henderson from finding California's exact quote from the US Constitution regarding racial discrimination to be unconstitutional about five years ago. Even the notorious Ninth Circuit Court of Appeals thought that went too far, and reversed the decision.

That said, had Thomas been sitting on the Court at the time of Dredd Scott, he could have reached a different result without attempting to end slavery by judicial fiat. The Court ruled that Scott was property which had to be returned to its owner. A natural law constitutionalist such as Thomas could just as easily have held that the "3/5ths of a human" element of the Constitution was designed only to determine representation in Congress. Therefore, once a slave was out of the jurisdiction of the slave state, he could no longer be considered property, but rather a human being with rights equal to those of any non-slave. Of course that's all academic now, with the passage of the Civil War Amendments which changed the Constitution by proper amendment rather than by forbidden judicial act.

The opposite of judicial activism is not judicial inaction. It simply means that if a judge or panel of judges is going to attempt to accomplish something heretofore not done, that judge or panel is charged with doing so within the strict bounds of the law and the Constitution, and not from umbras, penumbras and emanations created out of whole cloth by an activist judiciary.

Captain Soapbox said...

You lawyers are just trying to make my head hurt aren't you? Umbra and Penumbra? 2000 year dead Romans? Natural Law? Oy vey.


AndrewPrice said...

Freedom21, I haven't read the book, but I have often discussed the issues of Natural Law.

I largely agree with much of what Lawhawk has said, though I think I see this issue from a different perspective. Please give me a couple days to gather my thoughts and get back to you with a thoughtful answer. :-)

John, What you've said is interesting and profound, and I think correct. I'm going to discuss Constutitional interpretation in an upcoming post, let's see if we still agree after that?

patti said...

i knew if i paid attention, i'd get an education in the blog posts, but the schooling continues in the comments. fascinating stuff...

and andrew, thanks for the Holla! i literally lol'd when i read: She's got a great take on events, very funny and very blunt. It's great!

it was the blunt part that got me kaughing. my mother, the german, would feel like a failure reading that. she has spent my lifetime trying to mold me, to convince me to "act like a lady." Bluntness is anti-lady-like behavior.

SCORE! and thanks again. very nice...

Writer X said...

LawHawk, this is quite possibly the best explanation on judicial activism in layman's terms that I've ever read. These are the types of nuggets (e.g. "why not let the Post Master General withhold mail from those businesses he opposes...") that Republican leaders should be including in their speeches and talk show discussions. It keeps the debate factual, unemotional.

Instead, I listened to John McCain on a local Phoenix talk show station this morning talk about Obama's Supreme Court pick and it was positively painful to listen to him. "Let's let the process take its course," he droned on. Oy.

LawHawkSF said...

John Keats: That discussion of hermeneutics versus exegesis is nothing short of freaking brilliant. I intend to steal it if I ever decide to go back to teaching law.

patti said...

obviously i can't drink and comment. obviously, i meant to write laughing, not kaughing.

Captain Soapbox said...

Well I hope you brought enough drinks for the rest of the class!

Who am I kidding, I have no class.

freedom21 said...

Here here, John Keats!!!

Just when I thought today was a complete waste, I learned two new words and got me an edu-ma-cation :)

SQT said...

I have thought, on an instinctive level, that judicial activism was wrong. But having it laid out in easy-to-digest terms, like we have here, is a big help in taking the argument to people who might not think there is any harm in it.

There is a touchy-feely aspect to judicial activism, as Sotomayor herself has alluded to by her comments that she said "whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging” (NY Times) that is dangerous in its appeal. It's scary when people like Sotomayor think that their judgment is inherently superior to the letter of the law.

LawHawkSF said...

While we're all pondering activism, allow me to throw into the mix what I consider to be the finest and most well-known example of judicial restraint which nevertheless affected an immense change in American law and life. Plessy v. Ferguson had been the law on racial segregation since 1896. The Constitution never directly addressed segregation, so it was left to judicial interpretation. In what John Keats might call an exegesis, the Warren Court in 1954 held in Brown v. Board of Education of Topeka, Kansas that "separate is inherently unequal."

The court did not discover a penumbra or emanation that declared that the Constitution said that segregation was unlawful all along. It reviewed all the cases and arguments before it, including the holding in Plessy and found that the course of law and history had proven that Plessy simply didn't have the benefit of fifty-eight further years of statutes and case law to provide the information on which the Supreme Court now relied. In reversing the previous Supreme Court decision. it interpreted the law rather than writing all new law. It came up with a different finding without ignoring either the express words of the Constitution or the reasoning behind the earlier decision.

John Keats said...

Apologies for my previous, inaccurate comment. What I meant to say was:

LawHawk: Fantastic example - separate is not equal in light of the Constitution; for, as dissent to the decision states, "[i]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. ... In respect of civil rights, all citizens are equal before the law." An exegetical reading of the Constitution simply did not provide ample evidence in support of segregation.

The decision interpreted the Constitution - it did not unnecessarily augment it.

AndrewPrice said...

John and Lawhawk, what's interesting about Brown and Plessy, is that Plessy was basically a political decision rather than a legal decision -- it was compromise made to placate strong political interests. In that sense, it was itself judicial activism. And, as is often the case with activist decisions, it was short-sighted and it caused generations of political and social strife.

When the S.C. reversed Plessy in Brown, it recognized that Plessy had been a political compromise that may have been needed at the time, but whose time had passed.

It thus sought, in Brown, to restore the law to the state it should have been in had the Plessy court not acted in an activist manner.

Thus, while you can argue to a degree that Brown represents judicial activism, because the Court and not Congress "amended" the law, Brown really was the court simply nundoing its own prior activism.

AndrewPrice said...

Writer X, thanks! That is exactly my intent with this series, to give Republicans a guide on how to defend our beliefs in simple and common sense ways. No one in our party seems to be able to do that right now.

John Keats said...

Andrew: I think that's what we're saying - the Warren Court finally provided a sound exegesis of the Constitution when previous decisions, notably Plessy, interpreted the Constitution in light of then-current sensibilities.

Really, really looking forward to your next post, man.

LawHawkSF said...

John: In regard to the exegetic interpretation of the law, I always pointed out to students that the doctrine of Stare Decisis does not translate as "let the law be paralyzed." You understand what too many people attacking judges don't. That is that a new interpretation of the law, based on the founding documents, precedent and the entire body of law, is not judicial activism. In fact, it's an inherent duty. Judicial activism is when the founding documents and the body of law are flung aside to make way for new law, written by a judge.

I should also add that one of the worst traits of judicial activism is the tendency of appellate judges to rule on matters which were not presented to the court either in the briefs or at oral argument. I refer to that quirk as "oh,by the way" law. It's as if the judge is saying "since you lawyers, the legislature, the Founders, and the litigants were too stupid to address my pet social and political philosophy, I will now take care of that for you."

AndrewPrice said...

Thanks John, no pressure. . . no pressure.

P.S. I'm looking forward to your next one too. Good stuff!

BevfromNYC said...

This is FABULOUS!! My brain hurts now. Hey, Law, can you wait about a while before your next post on this subject. I've got to go to law school and practice for about 20 years before I can catch up! Everybody - Great discussion. This is one of those times where I can only listen and learn.

Brisco County said...

Good post. I'll read it again tomorrow when I'm not completely exhausted and I have the energy to comment.

LawHawkSF said...

Hey, Brisco: Good to hear from you again. I'm looking forward to your comments on Andrew's article. We're trying to get some sort of consensus on how the Republican Party should be rebuilding its strength, and judicial activism is just one of those building blocks. I think Andrew wants to address one of those issues with you. If you get a chance, shoot him an e-mail at the address shown on the right hand side of our front page next to "contact."

Oops. I just noticed that he already mentioned that.

Captain Soapbox said...

But Brisco, writing comments when completely exhausted is the best way to do it. From exhaustion comes truth, or something like that, it'd probably sound better in Latin.

Great to see you here too. :-D

StlDan said...

As for rebuilding the party v. Judaical activism I believe that by fighting Judaical activism we rebuild the party and bring new people into the fold. I will not stay with a party the drifts any further into the left lane and the head on collision that is coming.

AndrewPrice said...

StlDan, Welcome! I agree whole-heartedly. It's time that we stand up against this insidious left-wing drift. Fighting judicial activism is one of the biggests keys to that. The power to make law in this country must rest with the people, not an appointed few elites.

Post a Comment