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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

    2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

    3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

    4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

    5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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