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Activist judge?

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May 15, 2010
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Over the past several months I've heard the term "activist" judges, and have wondered, what constitutes calling a judge, an "activist". Is it just a term that is thrown around by people who disagree with the ruling? Or is there something more to it? Thoughts?
In general I believe the term was coming about from the notion of "unwritten" constitutional protections, or when determining the ruling of a case based on some kind of law or standard other than the constitution such as referencing foreign law as a reasoning for it. Or, a judge that seemingly ignores or circumvents the law due to seemingly personal reasons or disagreements with it; for example if they were to give a ridiculously low sentence to a pedophile.

Most commonly its used coming from a strict constructionist type view point, where reading more into the constitution that isn't specifically there in order to either remove a law or grant a right is seen as being an "activist".

I believe it has verged into the realm of hyperbole most of the time these days however, being used primarily when someone thinks a judge is going against the constitution. The issue is that against the constitution, as much as some may like to make it concrete, is a bit objective. You have the fundamental difference between strict constructionists, living document types, and the "its antiquated" types.

So the term "activist" judge is typically used as a means of saying "A judge who takes actions that remove/give rights or remove/create laws based on the style of constitutional review I disagree with." You see conservatives using it the most, though typically that is due to the fact that the strict constructionist view best allows for it. The living document view is in and of itself mutable, which means that its hard to suggest that a ruling is an illigitimate act of activism because the philosophy itself believes in the notion that the constitution can change with the times. However, it is still possible for the left to use, such as with the DC 2nd amendment case.
Generally, the way it works is that someone has this idea that they understand the constitution better than anyone else. They then label a judge activist if they issue a ruling that goes against their opinion of what the document stands for.

Mostly you can ignore it since it ultimately boils down to people saying "this guy is doing something that I don't agree with."
It's really hard to pin down what an activist judge is. Best example would be the case not long ago with the Firemen who did not get promotions that went to SCOTUS that got notoriety due to Sotomeyier ruling on it before her nomination. The SCOTUS ruling actually as I understand it added a brand new test for discrimination. Does this mean they where activist or legislating? To my mind no, since they where still interpreting the laws on the books, but the argument could be made that this was activist.

The problem with the term is also that so many throw it out meaning that they don't like what a ruling does, without even really knowing the basis for the ruling. I have this conversation alot in gay issues threads, where when a ruling goes in favor of gays, people cry activist judge, and it turns out they have not even read the ruling. I am sure there are activist judges, but since a certain set of people use the term so often and improperly, it's hard to find the real ones.

Can some one show me real examples of clear activist rulings?
Activist judge is often short hand for disagrees with me. But judicial activism is part of several theories of judicial interpretation. The following interpretations generally oppose activism:
Strict constructionism - Wikipedia, the free encyclopedia
Originalism - Wikipedia, the free encyclopedia
Textualism - Wikipedia, the free encyclopedia

Those three interpretations are usually seen as advocating forms of judicial restraint, which is often seen as the opposite of judicial activism.

Judicial restraint - Wikipedia, the free encyclopedia

The main judicial theory of interpretation that supports judicail activism is the Living Constitution interpretation.

Living Constitution - Wikipedia, the free encyclopedia
I find it is generally a means of expressing one's outrage over a decision.
I figured I could use this thread to move the discussion beyond just defining the term activist judge. Let me explain I think judical activism is a bad thing.

The judicial branch of government is the least accountable to the people. At the Supreme Court level, judges are appointed for life and basically answer to no one once they are confirm. This is a double edged sword. It's good because it allows them to preserve the Constitution even if it defies popular opinion. For example, rulings on free speech and the rights of the accused are often unpopular as few people are sympathetic to the first amendment rights of neo-nazis or the KKK and few pople want to see "criminals" go free on a "technicality". But it is vital to our system of government that all people, regardless of how offensive their beliefs are, have free speech and that everyone accused of a crime, no matter how guilty they seem, has a fair trial.

However, the lack of accountability to the people can become a negative if judges impose their will on controversial issues, rather than just stick to preserving the Constitution. This usurps the role of the legislative branch, which is directly accountable to the people for the decisions they make.

Of course that begs the question, what does preserving the Constitution mean? Various schools of legal interpretation have various answers. Interpretations such a strict constructionism, textualism, and originalism only allow judges to consider the text and/or intent of the orginal Constitution. They are bound by those limiting factors. We may not necessarily like the original text or intent of the Constitution, but that can be overriden through the amendment process (which is the duty of the legislative branch, which of course, is accountable to the people for the changes it makes).

More activist schools of interpretation argue that we should read the Constitution through the ever evolving standards of contemporary society. But what exactly does that mean? It's a very nebulous and undefined concept and basically allows each judge to define it as he/she sees fit. Which effectively means judges are only bound by their individual sense of right and wrong. With no meaningful restraints on the judicial branch, what is to stop them from imposing their will on the people when it comes to any number of controversial issues that come before them?
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