activist judges

So if a court, especially the Supreme Court, makes a ruling you disagree with, it’s activism? It’s legislating from the bench? Just because you disagree? Ever consider that those judges are professional legal scholars and you aren’t, and it’s their job to decide if what we do is legal? If a majority of Americans come together and vote for a law that goes against the Constitution, against everything the country was founded upon (say, for instance, Jim Crow separate but equal, or modern, homophobic separate but equal), then it’s the Court’s fault when they strike down that law? By judging a law unconstitutional, the judiciary does not create laws. They are not legislating. They are judging. It’s their job. And if you don’t like what they decide, you can’t just raise the specter of out of control judges by saying they are legislating. It’s simply not true. Declaring a law unconstitutional says that the people are simply not allowed to make the law they made. It’s judges’ job to decide if what we do is legal.

But if you say that’s activist judges at work, whatever. I mean, I’ve disagreed with the Court’s findings before, and will again. But I don’t consider their decisions activism. I consider their logic flawed and their opinions wrongheaded. But I know they vote exactly the way we could have predicted them to, since their logic is usually the same throughout their career, and their wrongheadedness consistent. That’s why Presidents choose the justices they do.

It seems more than a little ignorant to say that voters can pass laws in favor of slavery, or bigotry, or inequality and expect that Justices will uphold those laws.

btw, Prop 8 has nothing to do with religious freedom. Prop 8 amends the California State Constitution to take away a right that all Californians have. It uses the will of the many to exclude a few. And that’s unAmerican. Not religious or free. That’s ignorant hatred of people who are different than you are. There is no separate set of rules for the majority or for the minority. We all get the same treatment. That’s the point.

Here’s a little secret. If you open your mind to new ideas, it’s not as though your brains will fall out of your head, or that your old opinions will go away. Consider the new ideas. And if you don’t like them, discard them. But for heaven’s sake, just try the ideas out for a little while. You might be surprised at what you find.

3 thoughts on “activist judges

  1. No, agreement is irrelevant. What matters is the interpretation of the law. Judges interpret the law, legislators make law. When the judiciary usurps the power of the legislature by making law the people are disenfranchised and the essential principle of democracy, one man one vote, is tossed out the window. The will of the people is supplanted by the will of a few like minded individuals sitting behind a bench. An independent judiciary is necessary to protect the people from miscarriages of justice and depredations of government. When the judiciary goes beyond its constitutional duty to protect the people and the Constitution by issuing decrees that create new legal rights of force new law into being our rights are is jeopardy.

  2. Wow. That was well said, and I believe you’re right. There are a lot of rulings that I don’t like. It’s up to the people and elected officials to write better laws under the consitution. If a law is seen unconstitutional, then it was written wrong (or just plain wrong, lika an obvious seperate but equal).

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