Thursday, April 30, 2009

Judicial Activism (3 of 3)

If you are going to pursue truth, you have to be prepared to change your mind!

Our Activist Judiciary = Apple Pie (Part 3 of 3)

How often do judges make law? Are there any controls?

Judges are very hesitant to "make law."

Whenever a trial judge rules on a question of law, the decision can be appealed to a higher court. (In some systems/states there is one level of appeal, in others and in the federal system there are 2 levels of appeal.)

All legal appeals say essential the same thing: "The lower court screwed up: it got the law wrong." (The only thing which can be appealed are questions of law - not questions of fact.)

When a court is reversed, the reviewing court is publically announcing: “The court below blew it.”

For a judge to deliberately rule in a new way ("make law") he or she has to darned well convinced that the "new law" is based on sound enough and powerful enough and convincing enough reasons that the appeals court will also agree that the law has to change. No judge likes to be reversed by a higher court, so it takes a mighty strong case for a judge to stick out his/her neck and "make law."

Are the courts usurping the legislature's power?

No. When a court makes law which is upheld on appeal, the legislature can always pass a law reversing the courts, legislatively saying "From now on, the law shall be xyz in such cases.”

So, the system of checks and balances still exists when a judge "makes law."

The only exception to that is where the highest courts rule on constitutional issues.

A legislature can't over-rule a high court's constitutional rulings.

And there is a check an balance on that power, too. A court's constitutional ruling can be "reversed" by legislative action through the constitutional amendment process.

The recent Kelo property law eminent domain case from Connecticut is a good example of courts being “over-ruled” by legislatures.

Kelo was NOT a case of judicial activism, by the way, although many have erroneously called it that.

In Kelo case, the Spreme Court majority ruled that, in deciding the case, they should pay deference to legislative findings and actions, which is the exact opposite of "activist judges" thwarting the will of the legislatures.

There was legal precedent for the arguments advanced by both the plaintiff and the State of Connecticut. (It is extremely rare for a case to go so far when there are good arguments on both sides - few would want to spend the money if the other side has a slam dunk, and courts are overloaded and they will refuse to hear cases without merit on both sides.)

Anyone who calls Kelo a case of "judicial activism" is demonstrating, ah, an incomplete understanding of the case and the holding of the court.

I believe Kelo was wrong decided, myself - I think it was a classic case were the Court should have substituted its judgment for that of the parochial executive and legislative branches of local government. The majority apparently ignored the common fact that local politics is often swayed by commercial and power considerations and that justice is, at east at times, lost in the power struggles of local politics.

But I believe Kelo should be recognized as the very epitome of judicial restraint, and as the very opposite of judicial activism.

There are, of course, mant cases of judges making law: ad that is a good thing

Without “activist” judges, we would be “stuck” with legislative action to decide what the rules are by which we all interact: that is what law is.

Given the, ah, politics of politics, the idea of law bing left solely in the hands of legislatures should frighten people

Rather than some form of evil to be resisted, activist judges are actually good for our society. As there are checks and balances on their deeds - judicial activism is simply one part of the overall system of checks and balances which our “founding fathers and mothers” created for us.

Simply put: our system including judge-made law is not broken.

And, if it ain’t broke.... don’t fix it.

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