Is judicial activism really a bad thing?

July 27, 2010
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Judicial activism – why is it such a dirty term?

Bring up the idea judicial activism in certain groups of people and you’ll get a different response.

There are those on one side who believe judges should not interpret the law using their own personal or political views. The law is the law and you stick to it.

Others think the interpretation of the law needs to change depending on the times. Can a law written 100 years ago still apply today? Perhaps.

I bring this up because of a quote I read from a person associated with the Indiana Family Institute. This is a group that works to strengthen families and wants to make sure that marriage is between a man and a woman only.

“With the stroke of a pen, a judge can say the statute is unconstitutional, as they have in Iowa, Massachusetts, California, and elsewhere,” according to Curt Smith. “So we want to remove the issue of what is marriage, what is family from judicial activism.”

And the term comes up it seems any time someone is nominated for a judicial position. Some cried judicial activist toward U.S. Supreme Court nominee Elena Kagan. The newest justice, Sonia Sotomayor, also faced that criticism. Our very own Judge David Hamilton, now on the 7th Circuit Court of Appeals, was called an activist during his nomination process to that court.

How can we not expect judges to interpret the law in a new way when certain issues have never been addressed? Can we really rely on the Constitution and decades-old law when it comes to legal issues with the Internet? Times change and there will be times when judges are forced to make a decision without the safety net of established law. If they didn’t, imagine the standstill in our courts system or the lack of redress in many cases.

The term “judicial activism” is just another way to inject politics into a position that should be as free from political influence as possible. Based on my brief research of the term, it’s a relatively new one, invented in the middle of the last century. Perhaps they didn’t have a way to describe this phenomenon appropriately before this came about, or perhaps the idea of activism didn’t matter as much.

But, it does seem any time a judge or someone with the possibility of becoming a judge makes a decision that one group doesn’t agree with, the opponents cry “activist!”

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  • Seperation of Powers
    The legislature's job is to make the laws, not the judges! Judicial activism implies that the judges are legislating from the bench, something that should be reserved for the body of law the represents the people.

    Yes, judicial activism is a bad thing even while "times change." Don't you think that the founding fathers realized that issues change with the times? Yet they still agreed on a separation of powers. Why might that be?
    • Activism Exists
      What else do you call it when the SCOTUS discovers a right to destroy your unborn child in the Bill of Rights? What else do you call overturning the clear will of the people by instituting same-sex marriage (see California, etc.)?
    • Judge
      In my one and only dealing with the court it was as if Judge LynnMurray of Howard County practiced judicial activism at her discretion. Using it in a chauvinistic and unprofessional manner.

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    1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

    2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

    3. Low energy. Next!

    4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

    5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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