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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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    5. "No one is safe when the Legislature is in session."

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