Wednesday, October 1, 2008

Reviewing Activist Legislators-from-the-Bench

So. I hear a lot about "activist judges" who "legislate from the bench" and take away the right of The People to take charge of the laws of the land. "Activist" judges are gonna be the downfall of our system if you ask the right people.

Trouble is, I'm not sure what these people want the judiciary to do instead.

So let's go through a very basic remedial civics lesson. There are people I know online who have a much deeper knowledge base than I've got at my command, so if they come in and say I'm wrong, you should listen to them. But based on what I learned in high school, this is how things work. The legislature (that means the House of Representatives and the Senate) makes law. The executive branch (that's the President and the people working under him) enforce the law. The judicial branch (courts and judges) interprets law and legal precedents. Since 1803 this has included doublechecking them against the Constitution to make sure they're okay laws in the first place. This, along with what scraps I remember from my high school government course, is the core of my knowledge here.

Now let's take an example and see what happens. Let's say a state legislature makes a law stating that... I dunno. That black people can fairly be barred from certain establishments, that keeping whites and blacks separate is okay as long as their "rightful" places are allegedly equal. We'll call these "Jim Crow" laws. That's a catchy name. Kinda reminds you of one of those adorable blackface performers, doesn't it? Yeah. Jim Crow laws.

So you've got state executive branches enforcing these laws, because that's what they do. Eventually, though, someone gets upset with the Jim Crow laws. Let's call him Brown. He sues, say, a board of education in... say... Kansas, because he doesn't believe that separate can ever be equal (which would have to be true for the Jim Crow laws to be Constitutional). Maybe he gets some other people to join in the suit, but that's not important. He loses, but he appeals. He appeals and appeals and eventually he gets to the US Supreme Court.

Now the court is faced with a decision. A case has been brought before them, and they either have to rule in favor of the board of education or they have to rule in favor of Brown. Now, the former choice means reaffirming that Jim Crow laws are Constitutional. The latter choice means ruling that Jim Crow laws are not Constitutional after all... at which point they have to strike down the law.

What to do?

Well, let's say after some judicial review (which is what legal scholars call the right of the courts to interpret the Constitution and evaluate other laws), they decide that separate can indeed not be equal, which means they must sadly annul the Jim Crow laws by dint o'violatin' the greater law o'the land.

The principle allowing school segregation is ruled Unconstitutional. Suddenly school districts are banned from separating blacks and whites into different schools. Wait, wait, wait. Did the Supreme Court just make a ban? Isn't that making law from the bench?

Legal scholars say no, because striking down a law is not the same as making law. These two are only confusable if you conflate changing the law with creating law. Of course judicial review may require changing the law. What good is it to have the power to evaluate the Constitutionality of laws if you can't annul them upon deciding they're bad?

Most people who dislike the outcome of a specific instance of judicial review will refer to the court's behavior as "judicial activism" instead. Why? Because "activism" makes it sound like they're stepping up and actively reaching beyond the power they were given. However, they only do this in the case of decisions they don't like. There's good reason for this.

Most citizens and pundits who believe that something should be legal (whether it already is or not) believe that their desired outcome will be Constitutional. Otherwise they wouldn't want it to be done. This means that if a decision is made that favors their outcome, it falls in line with their own definition of "what the Constitution says." As a result, this is not judicial "activism," it's judicial "review." However, if it violates their personal definition of "what the Constitution says," in their minds the judges have stepped out of line. These are "activist" judges.

Need more proof that "activist judge" just means "judge I don't agree with?" Here's a FindLaw article that I feel puts it fairly well, because it mentions such accusations coming from both conservatives and liberals on their respective "pet issues."

Most prominently, the Court's conservatives attack judicial activism in the service of reproductive rights, gay rights, and church-state separation while practicing judicial activism in the service of states' rights, color-blindness, and associational freedom. And the liberals practice judicial activism in cases involving the first set of issues while attacking it in cases involving the second set.

So why are so many people so afraid of judges "legislating from the bench," a phrase that we've basically established is code for "changing the legal code?"

The big problem for many people is that judiciary aren't elected, they're appointed. This sounds very scary until you think about why this was intended by the founders. The first was an old (and now evidently-unpopular) assumption that legal scholars know more about the Constitution than laymen. This meant to the founders that being unpopular with laymen should not be enough to jeopardize a judge's career (and thus influence his decisions). It actually helps to remove politics from the decision-making of the judiciary by freeing them from the necessity of pleasing their constituents.

Now, you and I are both constituents, and we like to be pleased. I feel you there. Totally. But if a legal expert is afraid to honestly evaluate the Constitution simply because the decision may be so unpopular with laymen that he/she could lose his/her job, those decisions will be compromised. Look at how easy it is to sway legislators. Do you want the people interpreting the Constitution to be relying on lobbyists and PACs to keep their jobs?

People who favor the castration of the judiciary are generally in two camps. One is the populist "only elected officials should make law" camp. These people don't want the judiciary having anything to do with creating or annulling laws, since laws should (by their view) be decided by the legislature. There are governments that do this. In socialist law as I understand it, the interpretation of the law is given over to the legislature. Oddly enough China does this to retain more government control of legal interpretation rather than giving more to "the people," but that's neither here nor there. I think.

The point is that with this philosophy, it seems to me that the courts have the whole process of judicial review taken from them. They can interpret the law, but not to the extent that they start comparing laws to each other. Their job is to decide who has broken the law (as long as they don't decide that anyone in the government is at fault). Oddly enough, this seems to leave them in charge only of enforcing law, which, to me, would seem to be executive territory in our American system. So with this model, I'm not entirely sure what we'd need the judiciary for at all.

The other side of this that I've encountered is the "executive privilege" camp. See, back in US v. Nixon, the Supreme Court decided that it couldn't make the executive branch do things it didn't want to do, like disclose information in response to a subpoena. The Bush administration has invoked executive privilege a lot so they can avoid complying with legislative investigations, which creates a hierarchy among the three branches. Three guesses who comes out on top. This also makes the judiciary redundant for obvious reasons. Their job is to decide who has broken the law, but if their rulings carry little force against an entire branch of the government...

Either way, I fail to see how you can justify the existence of a judicial branch without the power of judicial review. Call it "activism" when you don't like the decision, but we need them doing it or we don't need them at all.

Like I said at the start. I'm not sure what these people want the judiciary to do instead.

I don't think they know either.

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