Is judicial activism really a bad thing?

July 27, 2010
Back to TopCommentsE-mailPrintBookmark and Share

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!”

ADVERTISEMENT
  • 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.

    Post a comment to this story

    COMMENTS POLICY
    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
     
    You are legally responsible for what you post and your anonymity is not guaranteed.
     
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
     
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
     
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
     

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by
    ADVERTISEMENT
    1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

    2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

    3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

    4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

    5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

    ADVERTISEMENT